jrb
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Dec 24, 2009, 9:31 AM
Post #5 of 41
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Re: [willbaillieu] Latest BMW/Oracle legal action
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My previous post must not have conveyed the distinctions. My apologies. I’ll try to be clearer. 1st Fact: Your initial post on 12/22 indicated BMW/Oracle might challenge the upcoming race result wrt the issue of fiduciary duty, “if it doesn’t go your way”. That is misleading. The pending legal motion is not dependent upon the result on the race course. It may be decided before of after the February 2010 races, but the timing will be largely up to the court. Your statement leads the reader to assume BMW/Oracle might file a legal motion related to fiduciary duty if they lose. That’s incorrect. It’s already filed, win or lose. Quote from your 12/22 post: “We were on your side when you challenged the actions of Alinghi in appointing a paper Challenger of Record. You won that one, but you've lost the rest of us since with your seemingly ceaseless court actions.” Some were on his side and some were not, both then and today. The timespan and number of court actions is a matter of perception. For those with patience, it has been a relative blink of an eye and a few court actions. For those with less patience, it has been forever with far too many court actions. I disagree with Stuart Alexander and point out “a further, and potentially much more vicious, attack” gratuitously inflammatory language. It’s just court after all, with suits and words, but few fists. I’d also kind of like to see the fiduciary duty issue play out in court. It might provide important guidance for future defenders, whoever they might be? YMMV. 2nd Fact: Again, your 12/22 post indicated more than you are writing in your 12/23 response. We agree that BMW/Oracle has given notice that they intend challenging the origin of Alinghi's sails. Your 12/22 post indicates they intend to challenge the origin of the sails in court. They do not. They intend to challenge the origin of the sails via the race jury. That’s sounds like fairly proper sailing practice. YMMV. 3rd Fact: I’m not going to dispute how you feel about the America’s Cup in general or the state it currently finds itself. Also, congrats on winning your cup challenge. However, there are plenty of sailors on each side, cup or otherwise. I’d estimate the court record against Alinghi is quite damning regarding their conduct. I’m fairly sure their interpretations about the composition of the race jury and items such as measurement related to water ballast and rudders, which was rejected by the panel of experts, were essentially meant to predetermine the outcome of the match, on or off the water. Hypothetically, had Alinghi won the match without the court challenges being considered, especially as they lost each court challenge, then….” That would be the ultimate hollow victory, and an undeserved conclusion to an America's Cup contest.” Your words. “Neither side in this farce will ever win a popularity contest. They are like two dogs in the manger, but only one is making challenges through the Courts. I think it is 10-0, Oracle at the last count.” If popularity won an AC match, then the history of winners would be much different. I don’t think either side gives a rat’s backside about popularity, and that’s never been what the AC is about. I was going to agree you are right with regard to only one side making challenges through the courts, but it’s just not true. Alinghi has lawyered up plenty and have initiated plenty of their own motions on appeal and otherwise. As an aside, your 12/22 post you wrote: “Right now you have demanded and won in Court, a competition in Valencia, some time in February (maybe), over something between 3 and 7 races (who knows?) in the loony multi hulls that you first insisted on.” (the “you” being BMW/Oracle) Valencia was mutually agreed at a point in time in the process that provided appropriate notice to the challenger. RAK was never deed compliant. For RAK to be the match site, BMW/Oracle would need to consent. They did not, which is their right. (that’s pretty clear cut, sort of like port/starboard) Without time available to provide notice to the challenger, the court ordered Valencia. The issue of the number of races (and a delayed start date of for the match of ~4 days) was brought up by government officials in Valencia. The subject was not broached by BMW/Oracle and they are prepared to race the DoG match beginning on the court specified date.
I enjoyed reading your posts, which included a certain amout of poetic license. My above comments explain how I think they represent a certain amout of misrepresentation.
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