Lasers - Applying a Blow Torch

[BalticBandit]

A class absolutely succeeds because of its builder. 29er, J-24, 49er, Laser, Sunfish, Windsurfer, the whole RS series, the whole midwest Scow phenomenon, Melges 24s, Farr 40s etc.

All had massive builder support

 

[Reht]

You need the builder, you need the racers, you need the volunteers and people in the class organization, give me an example of any popular one design class today that didn't or doesn't have any of these.

In the past when you could home build yourself a competitive boat then maybe the builder wasn't as essential, but probably still helped a lot (you always get someone who just wants to drop some cash and have a race-ready boat in hand).

 

[Bruno]

and, last i checked if i decide to compete in a marathon (another oly format) i can buy my shoes as I please. just have to go the distance and piss in a cup at the end.

Close but not entirely true. British Athletic Competition rules.RULE 102 FOOTWEAR(1) Competitors may compete in bare feet or with footwear on one or bothfeet. The purpose of the shoes for competition is to give protection and stabilityto the feet and a firm grip on the ground. Such shoes, however, must not be soconstructed as to give the competitor any additional assistance, and no spring ordevice of any kind may be incorporated in the shoes. A shoe strap over the instepis permitted.

ok, just leave the rocket shoes and spring heels at home

 

[Bruce Hudson]

Is the long winded unpaid debate between two lawyers here

AFAIK IPLore is the only lawyer posting here at present. Not sure your surmise that ISAF has deeper pockets that Kirby is true. They have a few £M in the bank. Likely to be a long and crushingly expense process? The answer has to be yes.

Agreed - IPLore is the only person that I know posting recently. There was a Canadian Lawyer who posted back a bit - but in case it's not clear I am not a lawyer - just long-winded.

 

[Bruce Hudson]

Gantt

Let me see if I can answer some of your questions in an unbiased way. I'm not going to take sides between Kirby and LP. But I hope I can encourage you to at least give your class association (if you are a member) a fair assessment,

Any law student with even a poor grasp of contract law would tell you that the ILCA class rules did not nor could not impact a binding agreement between Kirby and Laser Performance,

Sir, that is a low shot. Its a long while since I was a bright eyed law student. But I like to think my grasp of the law has grown over the years.

(As an aside, I agree the class rules should not impact the contract between Kirby and LP. The contract should stand on its own)

>I fail to see how the agreement that the ILCA had with Kirby could have been ignored by the ILCA when making it's rule change. Did the ILCA or Kirby make any attempt to release themselves from the agreement? Did Kirby 'sell' or transfer his rights under the agreement with ILCA. I disagree that changing the rules was the right thing to do, because in doing so, the ILCA breeched their own agreement with Kirby

.

I do not see how the ICLA broke any agreement with Kirby. Furthermore Kirby's lawyers have not stated a claim that ICLA is in breach of any agreement or contract between ILCA and with Kirby!!.

The only claims that Kirby's law suit bring against ILCA are tortious interference constituting unfair competition, and inducing LP to breach LP's contract with Kirby ( a contract which ILCA were not a party to).

IMO The contract between Kirby and LP can approximately be summarized as

1. The parties agree that ILCA has the right to measure the tooling

2. The parties agree to keep the contents of the Construction Manual confidential

3. The parties agree that ILCA and IYRU are solely responsible for any changes going forward to the CM (Goodbye, claim of copyright!!!!)

4. The parties agree that ILCA shall receive a fee for their services.

As far as I can tell from this ILCA has not broken any contract with Kirby. Kirby's lawyers would have been all over that and they haven't filed a claim.

On what basis would the court not hear the claims Kirby has brought against the ILCA ?

The Court can hear anything it so desires, but ILCA will refer the court's attention to para 14.

" Any disputes arising by virtue of this agreement shall be submitted to a single arbitrator to be appointed in default by Lloyds Register of Shipping"

The tortious interference claim of course is not a contract claim . However in order to claim inducement to breach a contract, first you must show that there has been a breach of contract.

The devil, as they say, is in the detail.

Again, this is not to say who is right between LP and Kirby, but I think your class association deserves a little more credit than you have been allowing them so far. You have my word, that I am not in any way connected to the class association, other than paying dues once in a while (probably when Gouv was running things)

Apologies IPLore - my comment wasn't so much directed at you. What was on my mind (as a non lawyer) was something like: "I know this to be true so how come you have reached the conclusions you have?" (I actually don't like personal attacks - and do my very best to refrain from them). I can understand from what I (poorly) wrote being taken the way you did and for that I unreservedly apologise.

Here is the breech mentioned in the Civil Action:

Point 20 of the Civil Action in reference to the "ISAF Agreement":

"Agreement 1" specifies that all authorized builders of Kirby Sailboats must have a license from Kirby.
This was signed by ILCA (on or about) November 30, 1983. The rule change directly contradicts the agreement.

Be sure to read the updated / amended Civil Action. The original one doesn't.

You have a point re arbitration via Lloyds - I wonder if it was attempted? Pretty sure it wasn't - or at least hasn't been mentioned anywhere I have read.

I'm not connected either though have gotten to know a few people who are. Have never met Kirby. Never (knowingly) have met anyone who has been on the ILCA World Council. Have met a couple who have served on the ISAF/IYRU at a fairly high level. Know and have known several people on the NZLA.

As previously stated, I am not a current member but intend to be next season (it's winter here now). Though I started sailing Lasers in 1983, I have spend a few years away from them, a few years becoming overweight, a few years ill (still recovering), and now am back on track to competing properly... Most here only join the NZLA (and therefore ILCA) if at official events national level.

If in my neck of the woods, I'd be pleased to have you as a dinner guest and be long winded on this and other topics!

 

[Bruce Hudson]

Counter claim has been posted. It's past my bed-time. From my viewpoint, and from the introduction, the response/counter claims seem to me to be quite weak. I am sure after reading more detail and the ensuing discussions, that there will be far more said on the topic...

6/12/2013

40

ANSWER to 23 Amended Complaint,, with Affirmative Defenses. , COUNTERCLAIM against Bruce Kirby, Inc., Bruce Kirby, Performance Sailcraft Pty. Ltd., Global Sailing Limited by LaserPerformance (Europe) Limited, Quarter Moon, Incorporated. (Attachments: # 1 -Certificate of Service)(Smith, Turner) (Entered: 06/12/2013)

6/12/2013

39

MOTION to Dismiss by Farzad Rastegar.Responses due by 7/3/2013 (Attachments: # 1 Memorandum in Support, # 2 -Certificate of Service)(Smith, Turner) (Entered: 06/12/2013)

6/12/2013

38

MOTION to Dismiss by Karaya (Jersey) Limited, Velum Limited ITM SA (Antigua and Barbuda).Responses due by 7/3/2013 (Attachments: # 1 Memorandum in Support, # 2 Affidavit -Rainer Buchecker, # 3 Affidavit -Thomas Von Urbisch, # 4 -Certificate of Service)(Smith, Turner) (Entered: 06/12/2013)

6/12/2013

37

Corporate Disclosure Statement by Velum Limited ITM SA (Antigua and Barbuda). (Smith, Turner) (Entered: 06/12/2013)

...at least it is moving forward.

 

[Bruce Hudson]

There is a lot of content in the documents lodged, I like the metaphor that it's normal to throw a lot of mud to see what sticks. I'm not so surprised that there is an attempt to complicate things - I would if in their situation. It would seem LaserPerformance can continue to build with the status quo - so if they believe that their chances of losing their building rights are high, they will be looking to complicate matters and draw it out.

I didn't expect the questions raised surrounding the amount of the royalty paid, though would be surprised if Kirby and Co had made some basic mistakes there. Possible though.

It would appear that the sale of Kirby's rights to Global Sailing were not completed. According to the agreement one of the conditions for the rights to be completed was the signatory parties were to be notified. If that is found to be the case, then Global Sailing had no rights under the agreement, (unless they were acting as Kirby's agent) and Global Sailing did not have the right to terminate LaserPerfomance as a builder (or act in any other way).

The are issues raised surrounding a dispute over the "lucrative Asian market", where Laser Performance holds the trademark (though there are questions to be answered about this) though their designated building area was/is North America, plus any other area not covered by a builder's agreement. If there was an agreement designating Asia to LP, then I haven't heard of it. The question of Asia (not Japan) was in the hands of Kirby - my reading of the respective contracts make it seem to me that Kirby had the right to designate new or existing builders - if one wasn't already designated. I think there is some validity to their claims with the Asian market, so long as they can prove they actually have the trademark registered properly.

In any case, we have progress, though it would appear that to answer these point by point will take a while.

Frankly, looking at their response makes the changing to the Torch look more valid.

 

[Chris 249]

well,mthanks for helping make my point, lasers were waning when the politically connected owners conned the iyru into reinvigorating them by selecting them for the past 20 years as the youth feeder and egalitarian olympic classes. as a class back then they were first rate, as a boat mediocre. now with improvements sailing one is a bit better than it was. btw, name the 3rd whirled oly medalists in lasers, not including prc as the resource base is a bit wider.

and, last i checked if i decide to compete in a marathon (another oly format) i can buy my shoes as I please. just have to go the distance and piss in a cup at the end.

What point did I help you make?

You are simply completely wrong in your claim that running shoes are not restricted, as Dogwatch has pointed out. The IAAF rules clearly state that "all types of competition shoes must be approved by IAAF". The rules ban any shoes that give a competitor "any unfair additional assistance" including springs. The number of spikes (no more than 11) and their size is restricted. You can't have grooves or ridges that are made of a different material than the rest of the sole.

And other sports do just the same; javelins are strictly controlled (down to 0.2mm tolerances!) in terms of weight, shape, centre of gravity and aerodynamics and so are the way you can throw them; modern javelins don't go as far as old ones. Swimming gear is now strictly controlled after the full-length swimsuit controversy. Shot puts are restricted in design. Golf balls are restricted in design, construction, dimensions and flight distance. Golf clubs are restricted in design, dimensions, control over the ball, weight, etc. Competition bicycles are restricted in design, weight, aspect ratio of components and dimensions and fairings are banned. In most of these sports, as in skiiing, top-level competition can only be done in officially-approved gear, so Lasers are pretty normal in not allowing you to build stuff in your back yard. And in all of these sports, the gear is much simpler than in sailing.

So ISAF is not doing any more than other sports when they restrict the gear used in world titles; in fact by giving classes like 505s, As, Moths and Int 14s official recognition they are allowing MORE freedom to home-build, limited production and experimental gear than most other sporting federations.

Lasers were not "waning" when they were selected by ISAF 20 years ago, at least in terms of numbers at titles in the USA, Australia and the UK.

Where is the evidence that there was any "con" by Laser when the class was selected for the Games and Youth worlds? What's the "con" in putting the most popular gear into the major events?

If selection into the Youth Worlds and Games is down to a "con" by manufacturers then why has gear that isn't built by a similar manufacturer (ie 420, 470) been in those events for so long?

If the Laser manufacturers can "con" ISAF to get the Laser and Radial into the Youth Worlds and Games then how come the Laser 2 was dropped and no other Laser product made it into those events?

What is the relevance of the lack of third world medallists in Lasers?

 

[jwlbrace]

LP's sister company could become a headline sponsor for ISAF... no con, but definitely buys influence.

 

[Chris 249]

Sure, but Bruno was talking about a "con" that started 20 years ago....a "con" that got the big rig into the Games years after it had become the most popular adult's raceboat but saw the L2 dropped from the Youth worlds, the L5000 a non-starter for the Games, and the Radial lose out in favour of the Europe until (IIRC) votes from smaller countries got it into the Games.

Any "con" had very patchy success for Laser, and was one which the most popular class the world has ever seen (Original Windsurfer One Design), the former holder of the "most popular boat" title (Snipe) could never pull off in decades of trying, and which the extremely well-connected Dragon and Star classes failed at. Seems the best conclusion is that there was simply no con at all, and that the selection of the world's most popular raceboat was just a perfectly reasonable move.

 

[jwlbrace]

There's no con, it's just a stupidly popular boat. If the Laser really were a 'crap boat', then really, there would be no fuss... we, the boat buying public, would have dumped it years ago.

 

[Phil S]

Some of us like to knock the design details of the Laser but no one can knock the Laser as a class, its the biggest success in our sport in its history, huge numbers, international spread, high standard of racing and accessible to everyone. Its a shame this current fiasco may put that all in danger.

I doubt any other boat will have all the right combination of plusses at just the right time to ever achieve anything like this success or to replace it.

 

[jwlbrace]

response...

http://ia801604.us.archive.org/30/items/gov.uscourts.ctd.99988/gov.uscourts.ctd.99988.40.0.pdf

 

[Reht]

Basically, the response is that Kirby and associates are out to get LP/QM/etc. Kirby may or may not have actually designed part of the laser and definitely didn't write or hold copyrights to the CM.

There's an awful lot of "the defendant ________ denies" and "the defendant __________ does not have enough knowledge to be certain of the truth" sort of claims going on in there (I counted about 4-5 pages of it, and I gave up before reaching the end of the document).

It'll be interesting to see what official response if any the other side gives. The one thing I didn't like was how LP/QM/etc's response tried to describe sailing, as if (possibly rightly) they are talking to an audience that knows nothing of the sport.

 

[Bruno]

one man's con is another superb marketing pitch. the pitch was that by selecting the Laser, admitted as cruder, less sophisticated piece of equipment than the current classes ( came in as an FD replacement!) that it would increase opportunity for a wider more diverse sailor base to participate in a less 1st world elite games. hence the point. If you think that has occurred then you are a happy camper.

What seemed like a con to some of us was that we thought then and now that the 5 rings should represent the highest level of our sport. Arguably the Laser is sailed more physically than anything other than a sailboard or a Finn so a case could be made there. And that the level speeds create more tactical emphasis, though again the Finn is pretty developed in this regard also, though both of these could be refuted by the mixed success when growing Laser champions step up into Finns. At the time the example was Bourke who had been so dominant in Lasers but then was not able to dominate in Finns. Clearly a different skill set was required in Lasers than in other classes which did not always translate perfectly.

Some of you guys are beginning to sound a bit whinily defensive, to me the Laser is a tool to do what I want to do, not an endall and be-all. It is not the unltimate boat, it was intended to be a cheap toy for occassional use by yachtsmen who also sailed much more developed classes. And as such it works well, it is also a training or youth boat, and as I credited had a superb worldwide class organization that offered consistent challenging sailing in good venues so that one could train and measure where one was at in certain skillsets. I went out in breeze a few days ago and noted that I was out of shape and needed to practice more, good use of the tool.

But by 1990 there was a growing perception that the class rules and built standards were reaching a self limmiting point compared to other yacht developments, sailing around in big breeze with HA crap was not that great, not to mention all the other stuff. This was also about the time that Pearson was destroying the boat's reputation in NA and there were multiple issues with sails, etc.,. The class was losing credibility and value when a succession of 3 politically well connected builders turned it around by improving quality, upgrading equipment, and getting it the 5 ring nod. And they sold a lot more boats as a consequence. So just ease up on the one note, Lasers are great and if you do not think so then piss off, please. Like most enduring global businesses it is a complex weave of different factors and stakeholders which has meant different things.

What has emerged form the recent court filings is that the rights for China were unassigned, I think that might be what is driving much of this. The old 3 billion consumers dream has seduced business men for 200 years.

 

[torrid]

So when this gets to trial, I assume it will be shown live on Court TV? Who is willing to appear as a talking head nightly on Nancy Grace to tear apart the witness testimony?

 

[IPLore]

My dear fellow, no offense taken. I have been called far worse. I look forward to good food, great wine and a robust conversation over dinner

Just to close on this point before we study the response and counter claim. Kirby's suit and amended complaint does not claim that the Laser Class Association broke any agreement with Kirby. In the introductory paragraphs of the complaint they partially quote the definitions section of the 1983 ISAF agreement, (while carefully leaving out the remainder of the definition which simply states that the builder may also be the trade mark owner. ) The ISAF agreement has nothing to do with licenses and royalties. Kirby's complaint does not say that ILCA broke the agreement or broke any agreement, Because ILCA did not break any agreement.

Kirby's claim with regard to the ILCA is that ICLA induced Laser Performance to break LP's agreement with Kirby. We will see if the facts support this claim. Personally I doubt the sequence of events supports this claim.

By all means let us hear the various arguments of the two commercial parties, but let us pause carefully before we criticize the actions of the Laser Class Association. I don't see anything improper in their actions yet.

Any law student with even a poor grasp of contract law would tell you that the ILCA class rules did not nor could not impact a binding agreement between Kirby and Laser Performance,

Sir, that is a low shot.

&g

t;

I disagree that changing the rules was the right thing to do, because in doing so, the ILCA breeched their own agreement with Kirby

blockquote>.

I do not see how the ICLA broke any agreement with Kirby. Furthermore Kirby's lawyers have not stated a claim that ICLA is in breach of any agreement or contract between ILCA and with Kirby!!.

The only claims that Kirby's law suit bring against ILCA are tortious interference constituting unfair competition, and inducing LP to breach LP's contract with Kirby

As far as I can tell from this ILCA has not broken any contract with Kirby.

On what basis would the court not hear the claims Kirby has brought against the ILCA ?

" Any disputes arising by virtue of this agreement shall be submitted to a single arbitrator to be appointed in default by Lloyds Register of Shipping"

The tortious interference claim of course is not a contract claim . However in order to claim inducement to breach a contract, first you must show that there has been a breach of contract.

I think your class association deserves a little more credit than you have been allowing them so far.

Apologies IPLore - my comment wasn't so much directed at you. What was on my mind (as a non lawyer) was something like: "I know this to be true so how come you have reached the conclusions you have?" (I actually don't like personal attacks - and do my very best to refrain from them). I can understand from what I (poorly) wrote being taken the way you did and for that I unreservedly apologise.

Here is the breech mentioned in the Civil Action:

Point 20 of the Civil Action in reference to the "ISAF Agreement":

"Agreement 1" specifies that all authorized builders of Kirby Sailboats must have a license from Kirby.
This was signed by ILCA (on or about) November 30, 1983. The rule change directly contradicts the agreement.

Be sure to read the updated / amended Civil Action. The original one doesn't.

You have a point re arbitration via Lloyds - I wonder if it was attempted? Pretty sure it wasn't - or at least hasn't been mentioned anywhere I have read.

I'm not connected either though have gotten to know a few people who are. Have never met Kirby. Never (knowingly) have met anyone who has been on the ILCA World Council. Have met a couple who have served on the ISAF/IYRU at a fairly high level. Know and have known several people on the NZLA.

As previously stated, I am not a current member but intend to be next season (it's winter here now). Though I started sailing Lasers in 1983, I have spend a few years away from them, a few years becoming overweight, a few years ill (still recovering), and now am back on track to competing properly... Most here only join the NZLA (and therefore ILCA) if at official events national level.

If in my neck of the woods, I'd be pleased to have you as a dinner guest and be long winded on this and other topics!

 

[IPLore]

Taking off the legal hat for a moment.

In my humble opinion, by far the best solution for Laser sailors worldwide would be for the two sides to agree to mediation. The court battle will be long and costly. This will take 2 to 3 years in my estimation. The Class is bound to suffer in the meantime. Whatever the outcome, it will probably not lead to more funds being available to promote the class There will be a bitter loser and an impoverished winner.

Successful mediation usually leaves both sides dissatisfied. Maybe Bruce Kirby would end up getting a royalty payment, less than he would like and more than the builder wants to pay but he would still be involved in the Class and surely that's a good thing. Maybe there would be a defined process for reviewing builder standards supervised by the class association. It would give the builder more long term security than Kirby would like, but less of a monopoly position than the builder would like.

Sometimes, mediation can create sensible solutions that are not always available to the court. For certain, it can be resolved quicker and with less anguish than full bore litigation.

Far be it for me to deny a litigator his hard earned fees, but there are some situations where mediation or failing that, arbitration is the right route..

 

[torrid]

What has emerged form the recent court filings is that the rights for China were unassigned, I think that might be what is driving much of this. The old 3 billion consumers dream has seduced business men for 200 years.

So what you are saying is though we've been dreading cheap imported hulls from China for years, it's expansion into the Chinese market that made this thing blow up?

 

[Mudsailor]

Or is it a combination, LP wanted the china rights, so they could move production there and have a high volume (and low cost) plant?