Lasers - Applying a Blow Torch

[TRUTHPUPPETHATESUALL]

He has sued almost everything. The class Laser, the federation sailing, manufacturer, brand owners and even seem to send his lawyer after a sailor from the laser making comment on laserforum. He publishes photographs misleading and his friends plaster walls with surveys, e-mail form and written as incomplete as court documents. His friends who are not even of the class and contribute nothing of that claim to say to those who are of the class what they should do with their contributions. His big state friend was also left a class position, refused to help the class, and ridicules here forever, because he did not like the good people elected by the local class to run itself and put controls and financial order to it. You can not tell these friends have a certain control over the money that you give class and passes, but he is here to say the class is so bad and what should we do with our vote. QED is a witch.

 

[KiwiJoker]

Don't shoot the messenger. I'm just pointing to the fact that the somewhat naive, grassroots Laser sailor turns out to be the MARKETING PRO!

Coincidentally from NZ.

Setting up biased polls.

Repeatedly criticizing ILCA and its decisions and encouraging others to do the same.

Repeatedly stating that "his part of the world" is ready to rename the boats "Torch".

Most vocal, in short time polluting two internet forums.

Give me a break, you forum rules police!

Shoot the messenger? Hell, we should machine-gun the messenger, preferably with large caliber high-velocity anti-tank ammunition.

The sole thing Bruce Gantt is guilty of is obsession with all this sturm und drang.

Nationality has nothing to do with it. He's concerned about the greater good.

As for thread pollution, look to your own backyard!

 

[Bruce Hudson]

He has sued almost everything. The class Laser, the federation sailing, manufacturer, brand owners and even seem to send his lawyer after a sailor from the laser making comment on laserforum. He publishes photographs misleading and his friends plaster walls with surveys, e-mail form and written as incomplete as court documents. His friends who are not even of the class and contribute nothing of that claim to say to those who are of the class what they should do with their contributions. His big state friend was also left a class position, refused to help the class, and ridicules here forever, because he did not like the good people elected by the local class to run itself and put controls and financial order to it. You can not tell these friends have a certain control over the money that you give class and passes, but he is here to say the class is so bad and what should we do with our vote. QED is a witch.

I'd love you to be able to reveal who you are and have a completely open discussion. Trouble is with hiding who you are, it would appear that there is something to hide, though it does seem like you have lifted your game... a little.

Yes, Kirby is taking a civil action against parties the he believes that are in breech of agreements. The ILCA encouraged both LP and Kirby to take legal action, then took away LP's motive to take legal action by changing a rule. Kirby is hardly suing "everything" or more correctly everyone.

I believe that Kirby is hell bent of putting things right again, and is looking at all options. I believe his actions regarding the trademark is a smart move, and hope it's successful.

I am 100% convinced for that since 1971, Kirby has been good for the Laser class. He's worked long and hard and in my view, any financial rewards he gained as a result was money well spent. That Kirby cares for the welfare of the Laser class, our sport, is an understatement of cosmic proportions. What's come out of this is how central Kirby was to 'the system' that helped make Lasers so popular. Also central to 'the system' is the ILCA. The ILCA manage multiple divisions, multiple international championships and in essence, the most vibrant and active sailing class in the world. Since 1983 I have been following international Laser racing, while competing mostly at club level. In my books, I am filled with gratitude that Kirby and the ILCA have impacted my world in an enormously positive way, as a result of my sailing Laser I've met people that I consider to be life-long friends. I know many others who feel the same way.

My guess is that by saying "...and his [Kirby's] friends plaster walls with surveys, e-mail form and written as incomplete as court documents" you are referring at least in part to me. For the record, I would love to consider myself a friend of Kirby - but we've never met - so that's not really a claim I can make. I would also like to consider myself a friend of the ILCA - I ideally want the ILCA do the right thing by honouring their agreements and admitting to the mistakes made with the famous rule change - and yes, I'm guilty of putting some hours - partly in reaching that conclusion and partly in writing on these forums. That the ILCA may save themselves legal fees in the process is a positive (The ILCA spent £84,159 on legal fees in 2011/2012 - according to Nils' report in LaserWorld Dec 2012 "The ILCA again experienced a significant loss for the most recent fiscal year; the result of continued legal expenses and an apparent structural deficit.")

 

[SA’s Sockpuppet Goddess]

This goddess does not approve of hate puppets. Life is far too short to interact EVER with those who spew hate.

We can tolerate love and peace distributed anonymously but the one who spews hate while attempting to disguise himself brings only shame upon his mother.

There is no need to publish your name here mr hatepuppet. Your shame comes to you from within as you realize the disrespect you have demonstrated to the mother who tried so hard to bring up a good person and instead has repeatedly died knowing she contributed you to the world.

Yes mr Hater of all. We believe you do hate everyone, especially yourself and those poor pathetic excuses for parents who mistakenly conceived and always regretted failing to abort you.

Love and peace to everyone!!!

 

[RobG]

[…]

• The rule change was proposed and voted on in 2011. The write up included the following statement: "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 it was believed that Bruce Kirby held certain design rights. The ILCA is not a party to any of these 'Kirby' agreements."

[…]

Now, inconsideration of the above, I have a few questions:

• What mistakes have Kirby, ILCA or ISAF made?
  
• Is it reasonable to think that ILCA (particularly Jeff Martin) were not aware of the agreement with Kirby? (Remember the 2011 ILCA statement "The ILCA is not a party to any of these 'Kirby' agreements.")

As I see it, the statement "The ILCA is not a party to any of these 'Kirby' agreements" is a reference to agreements between the builders and Kirby, not between the ILCA and Kirby.

The ILCA statement doesn't infer the ILCA were denying being a party to other agreements with Kirby, just that they weren't party to the agreements between the builders and Kirby. That seems like a reasonable thing to say, unless there is proof otherwise.

That's what I originally thought RobG. But then I realised that according to the builders agreements, all boats needed to be issued a hull number. The original builders agreement discussed in the civil action was signed in 1983, around the same time the ILCA agreement was signed. An official Laser can not be built without a hull number. (Plaques were introduced later - in the early 1990s I think - and were simply a way of controlling the issuing of boat numbers. There may even be agreements made about the plaques.) These might seem like small details, but makes the ILCA an important part of the builder's agreements.

These small details on their own don't mean that the ILCA knows what's in the builder's contract. Nor do they make them a signatory. But do they make the ILCA a party?

[...]

My understanding is that in the context of a contract or agreement, "party" is equivalent to "signatory" (while also noting that a signed agreement is not necessary for a contract, there just needs to be a mechanism to indicate agreement, along with the three other basic requirements).

But I don't know what JM really meant to say, nor am I a lawyer.

I sympathise with the ILCA because they faced a dilema, but am bemused by their choice of what seems to have been the the worst possible option. Surely the default "do nothing" option would have been less bad? But that is said in ignorance of their risk analysis, perhaps they feared being sued by Rastegar or LP more than by Kirby.

 

[Bruce Hudson]

My understanding is that in the context of a contract or agreement, "party" is equivalent to "signatory" (while also noting that a signed agreement is not necessary for a contract, there just needs to be a mechanism to indicate agreement, along with the three other basic requirements).

But I don't know what JM really meant to say, nor am I a lawyer.

I sympathise with the ILCA because they faced a dilemma but am bemused by their choice of what seems to have been the the worst possible option. Surely the default "do nothing" option would have been less bad? But that is said in ignorance of their risk analysis, perhaps they feared being sued by Rastegar or LP more than by Kirby.

You are possibly quite right - Jeff Martin possibly meant that too. When I read the sentence back in 2011, I took it at face value. In 2013, I had the new understanding that there were a group of contracts that were codependent. Can't get my head around the idea that Jeff Martin didn't have that understanding back in 2011. But then, somehow the ILCA agreement with Kirby was not taken into consideration. Since this is pretty central to some of the allegations, we'll possibly find out more when the ILCA post their statements with the courts.

I suppose one of the upshots of having this go through court, is that there (hopefully) will be a legally binding way forward.

Trouble with that is that it will be in the hands of the courts, and be reactive to the motions before the courts. Wish it could be more visionary.

 

[BalticBandit]

RobG - I suspect IPLore will step in and comment, but you can be "party to a contract" without being a signatory. Think Will or Beneficiary. IE you can be "party" to an insurance contract as a beneficiary without ever signing a single thing but when the clause(s) applying to you come into force, you become party to the contract.

Now its true that I don't think you can be a party with obligations under a contract absent you signing the contract, but that's not quite the case here.

Secondly, while ideally contracts are written, It is also possible to have an enforcible contract based only in verbal or other mutually agreed upon representation. So if the ILCA had a conversation with Kirby Way Back When and came to a verbal agreement that they would put Kirby's name into the bylaws in return for Kirby licensing the building contracts in a way that benefitted the class, then that is in fact a contract - though potentially one difficult to document.

Now if in fact the ILCA was in no way party to contracts with LPE - then why do they have in their meeting minutes, references to payments from LPE that were in arrears? You don't get payments absent some contractual relationship.

So again I think the wording of the bylaws change notice is ambiguous in its "no party" comments. Its probably true that the iLCA is not directly a party to the contract between Kirby/GS and LPE/Rastegar - but it is not true that the ILCA is not party to the web of contracts that were in place. I suspect that they didn't intend to mislead but instead simply did not understand all the nuances of that web.

For example, the fact that given how one of Kirby's exhibits suggests the contract exists with the builders about the CM - the ILCA, by changing the bylaws to strike only Kirby but keeping the CM - has essentially accomplished nothing.

 

[ojfd]

Now if in fact the ILCA was in no way party to contracts with LPE - then why do they have in their meeting minutes, references to payments from LPE that were in arrears?

BalticBandit, can you point me to the document (link, post, whatever) where this is mentioned? I can't seem to find it. Thanks.

 

[SimonN]

Now if in fact the ILCA was in no way party to contracts with LPE - then why do they have in their meeting minutes, references to payments from LPE that were in arrears?

BalticBandit, can you point me to the document (link, post, whatever) where this is mentioned? I can't seem to find it. Thanks.

This was nothing to do with contracts and was to do with sponsorship of the class association.

 

[ojfd]

Last page of "ISAF agreement" (actually "IYRU agreement") from 1983 makes some interesting reading, especially in regard to disputes, law and transfer of rights.

It is not known, whether any amendments to 1983 agreement exist. If they do, they're not mentioned anywhere in BK's complaint.

 

[ojfd]

So Kirby could sell Kirby inc so long as Kirby inc retained its rights,

I wouldn't be so sure..

Can any of SA resident law experts tell me if BK's transfer of his rights to GS complied with 11.4 of this License Agreement (1989 Builder Agreement)?

 

[RobG]

RobG - I suspect IPLore will step in and comment, but you can be "party to a contract" without being a signatory.

If you're quibbling over signatures, there is no need for a signature if agreement can be indicated some other way such as by witnesses, parties saying that they agreed, etc. Signature is just a sound way of doing it.

If you're saying that in regard to contracts, party == signatory, then you agree with me.

 

[BalticBandit]

Well that section is in fact interesting, particularly WRT the asset stripping strategy of Rastegar.

 

[Bruce Hudson]

To comprehend contract law you must also comprehend that corporations are entities.

Kirby didn't transfer HIS rights.

Kirby sold the business and rights holder Kirby Inc which continued to own its rights.

The restriction says nothing about companies who owned rights changing general ownership.

Kirby inc continued as a contractulasy bound entity just as Quarter Moon initially continue as an entity when it was sold to LP.

On fact, in other parts of his filings Kirby complains to the court that rights and names have been changed without proper authorization by other parties whose approval must be secured before those names changed or assets move to other entities.

Kirby's filings are being and have been prepared by top notch litigators. Laymen like us sure as hell are not going to find faults in their individual filings and one who expects to find fundamental flaws in their application of contract law is a fool.

Considering the source of the papers a reader will develop the best view of the possibilities by saying to himself, "considering Kirby is correct about all this, what possibilities remain as arguments and courses of action for the other parties?"

Certainly,"we disagree and here's why." Is a possible response,

The questions for which we do not currently have answers pertain to whatever other lawyers believe are argusble positions in those contracts.

Agreed. Kirby didn't transfer his rights, though that was not for want of trying. I believe Kirby made some mistakes regarding Global Sailing - and he does too.

One thing to add is that some items are a little 'overstated' - that is a competent lawyer is puts forward the interpretations that most favours their client, as well as the contestable allegations. That is to be expected.

However, once you strip away the allegations, there remains quite a lot of facts that led me to believe that the Kirby case is very strong.

The area that the defence seem to be placing weight on are the events concerning Global Sailing. My belief is that while the defendants may be put forward this as a defence, I don't believe that they will be successful - paramount will be the agreements - the civil action drives this and required the defending parties to answer point by point.

It will be interesting to see what the respective parties put forward as their defence.

 

[JimC]

The defense hasn't said squat. The ISAF and ILCA have each squeaked once but they really didn't say anything

'xactly so. At this stage the plaintiff's lawyers will have thrown everything but the kitchen sink on the wall, some of which they reckon is pretty good, and some of which they reckon is pretty far fetched and hopeless, but might get lucky. The stuff that sounds most convincing might well be in the latter category since they may well have taken more care over it. But until the first bucket of cleaner gets thrown on the wall we're not really going to have a clue what's sticky and what's not. And the first few buckets thrown on the wall will be all sorts of cleaners, and again some may be pretty good and some may be hopeless. But I do reckon there will be at least one very convincing sounding argument that no-one here has predicted simply because no-one has come up with a convincing sounding defence, and I cannot believe there isn't one, even though I haven't a clue what it might be.

I suspect after the first round of throwing stuff at the wall the lawyers on both sides will take a look and see what looks good and think about settlements. Whether the parties will agree to a settlement is another matter. Personally I fear this may run for years, as, I suspect, do ILCA/ISAF, which is probably why they've taken such a strange stance to keep a supply of some kind of plaque going in the meantime. Whether that was well advised is something we shall see... I should have thought they'd have been better off to stay clear until there was some kind of defence strategy visible, but I suppose they might have been told stuff under NDA we're not aware of. Now I think of it a large amount of info under NDA might be an explanation of the ILCAs strange "don't talk to the members" policy, but I still cannot think that's well advised. You really should say something, even if its "we're not allowed to talk about what we know" - use the template Gouv posted above!

 

[redstar]

I suspect after the first round of throwing stuff at the wall the lawyers on both sides will take a look and see what looks good and think about settlements. Whether the parties will agree to a settlement is another matter. Personally I fear this may run for years, as, I suspect, do ILCA/ISAF, which is probably why they've taken such a strange stance to keep a supply of some kind of plaque going in the meantime. Whether that was well advised is something we shall see... I should have thought they'd have been better off to stay clear until there was some kind of defence strategy visible, but I suppose they might have been told stuff under NDA we're not aware of. Now I think of it a large amount of info under NDA might be an explanation of the ILCAs strange "don't talk to the members" policy, but I still cannot think that's well advised. You really should say something, even if its "we're not allowed to talk about what we know" - use the template Gouv posted above!

Attendees at ILCA WC meetings have in the recent past had to sign confidentiality agreements. It's not just that they are bad at communication (which they are, although there has been some mild improvement in recent times). They have been well and truly convinced by the lawyers that they absolutely have to keep their mouths shut on this.

 

[Reht]

So a complaint has been filed, should there be no response what happens next? I presume it gets picked up by some court or other, how long does that take?

 

[Bruce Hudson]

Whether or not the metaphor of cleaners or the quacking ducks metaphor turn out to be more accurate, there are a surprising number of facts known so we can already see some of the stuff that is sticky.

Some of the mud that has not stuck in my estimation include the counterfeiting, unfair competition or publicity rights allegations. The stuff that has stuck relates to the agreements.

The ILCA have said a considerable amount from 2011 onwards. For example, the ILCA have stated, prior to the ISAF approving the rule change, that they would issue hull numbers/plaques based on 'legal advice' that the agreements were 'historic' - it is reasonable to think that they will not be challenging that fact that the hull numbers or plaques were issued. The ILCA expressed surprise about Global Sailing - Heini said that it 'all started when GS terminated LP's builder agreement' - so unless there was a notification that Heini was not aware of (possible but unlikely) Kirby's statements that he had transferred the design rights were misleading - they could only be transferred with ILCA/ISAF approval.

Central is going to be the validity of the codependent builder and ILCA/ISAF agreements. Accordingly, central to the ILCA/ISAF defence includes somehow invalidating the agreements. If the ILCA had a stronger case, then it stands to reason that they would have stated it back in 2011. Yet paradoxically - all the parties need the agreements for there to be a Laser class. That's why I believe:

• There are no notifications that invalidate the agreements - the agreements are still in effect
• The rule change does not invalidate the agreements
• Bruce Kirby and Jeff Martin are central figures, both being signatories and both still active.

With LP, central will also be the validity of the agreements, with the addition of providing a schedule of royalty payments - the provision of a time line may be interesting, though again it's the validity of the agreements that is paramount. Again, back in 2011 - LP 'needed' ILCA's assistance/backing via the rule change because of the builder's agreement - and got it. LP have made a single statement which included: "LaserPerformance vehemently deny the allegations made by Mr. Kirby and maintain that these legal proceedings are vexatious in nature at best. LaserPerformance will take all necessary action to contest and defend these ill-conceived and meritless claims." I really dislike this sort of legalise, it's nonsense - because some of the claims are statements of fact. That said, unfortunately for LP, that unless they have made the royalty payments, they risk that Kirby's November 2012 and March 2013 termination of the building agreement being validated by the court.

All defendants will provide correspondence, though once (if) the validity of the agreements is proven (and I predict it will be), the correspondence that includes notifications that comply with the agreements will be the most relevant.

From where I sit, the mud I see stuck to the wall looks pretty sticky - so it's got to be some amazing cleaner.

Here's some of my thoughts.

I can see the courts upholding the agreements. I can see the courts accepting Rastegar's position of confusion regarding the royalty payments (I predict Rastegar can and will plead confusion once the agreements are validated), and the court instructing Rastegar to make those payments and instructing Kirby to accept them. I can also see the courts telling all parties to go away and play nice. I am not so sure that LP will be terminated as a builder. I can't see the courts awarding significant damages - except perhaps legal costs against the defendants - Kirby has a strong case to state that he was backed into this legal corner by the defendants. I also believe that Kirby's position is far more reasonable than the civil action would have you believe.

It would be so much easier if all the parties could accept that the agreements are valid, and move forward without going through the pain of the courts. Rastegar is not some modern day version of Attila the Hun. Yes there are issues with his companies (Accounts of quality, supply and payment issues), but there are also some worthwhile initiatives like this: http://www.sail-laser.com/main/ and sponsorship initiatives.

I believe the first domino to tip is the ILCA repealing the rule change. Not because of high flung legal rationale. Because, simply, upholding the signed agreements is the right thing to do.

 

[BalticBandit]

Jim, I'm not sure LPE is looking to have a "decent" response on the base complaint. I think at this point, since Rastegar has stripped the assets out, he's hoping to lose so that the judgement can be used to force bankruptcy, thus voiding the contract and letting him get away with pennies on the dollar for the award.

 

[Bruce Hudson]

RobG - I suspect IPLore will step in and comment, but you can be "party to a contract" without being a signatory.

If you're quibbling over signatures, there is no need for a signature if agreement can be indicated some other way such as by witnesses, parties saying that they agreed, etc. Signature is just a sound way of doing it.

If you're saying that in regard to contracts, party == signatory, then you agree with me.

Didn't want to leave this hanging - and my previous efforts to explain were not very good. (Sorry, have been focussing on work and my previous attempts were rushed.) The following is an oversimplification - but you will find it stacks up with the agreements.

The builder agreements are Kirby between and each builder. According to the agreements, in order to complete building a Laser, a number must be issued and applied to each hull. The party who issues the number is the ILCA, who has agreed to do this through a separate agreement. The ILCA are party to the builder agreements, as without the ILCA issuing hull numbers, the Laser building agreements wouldn't work. The ILCA are not a primary party who is bound by the terms and conditions of the builder agreement. The ILCA have their own, separate agreement that they are bound to.

Party = entity.

So a complaint has been filed, should there be no response what happens next? I presume it gets picked up by some court or other, how long does that take?

Replies have been extended to June 14. See here for the latest: http://www.rfcexpress.com/lawsuits/trademark-lawsuits/connecticut-district-court/441418/bruce-kirby-inc-et-al-v-laserperformance-europe-limited-et-al/docket-text/ If there is no response, Kirby wins and either we sail Torches - or he's successful in his separate legal motion re the trademark. If LP fails to respond, a new builder will be appointed. All parties have stated that they intend to respond.



Of course there are efforts going on behind the scenes, so there could be announcements resulting from those efforts. For example, the ILCA may repeal the 2011 rule - but I'm thinking that's becoming less likely as time goes on. Maybe their attitude is to allow the civil action to proceed as is, and to simply follow the instruction of the court - to be sure that any decision is legal and binding.