9:30am, April 2nd, Justice Cahn will hear arguments from SNG and GGYC about the coming date of the cup. A lot of slop has since been tossed around by Alinghi in the last day or so and through an article on BYM news goes so far as to begin to hint that there may be an American conspiracy around the cup and the courts dating back to 1987. I’m beginning to be more and more suspicious of anything I read on that site anymore – which is disappointing because it’s such a rich site. That particular article doesn’t even reference an author other than “Alinghi”.
ANNNNyway, so Alinghi claims that Ehman has “changed his tack” from the 1987 case where tolling (suspending) the notice period took place while the court case was settled (while the American Team was on the ropes) but now is arguing against tolling. What they fail to mention is that during one of the many attempts to negotiate by GGYC, a tolling agreement WAS presented to Alinghi but they turned it down. Cory E. Friedman, who is providing some legal insight to the case on Sailing Scuttlebutt.com had this to say about the tolling agreement that was on the table but never agreed to by Alinghi – which was a HUGE blunder on their part.
From the article by Cory E. Friedman on Sailing Scuttlebutt:
Obviously, both parties thought they would have a tolling agreement, (although it is much more important to defendant SNG, which does not want the Match to happen), and Jim Kearney, GGYC’s lawyer at Latham & Watkins, sent David Hille, SNG’s lawyer at White & Case, a proposed stipulation. In an outbreak of “irrational exuberance,†Kearney even signed the proposed stipulation and referred in his cover letter to “the tolling agreement agreed to before Justice Cahn at the September 10, 2007 hearing.†Indeed, the proposed stipulation was extremely generous – perhaps too generous — as it tolled the Match until 10 months after all litigation was completed, including appeals to the Appellate Division and the Court of Appeals. Thus, it could easily have tolled the Match for years if SNG decided to drag its feet.
Amazingly, SNG declined to sign and file the stipulation and sent back a counter offer unjustifiably demanding more than just maintenance of the status quo. Negotiations broke down and nothing was agreed. Every law student is taught in first year Contracts class that, except for sales of goods under the Uniform Commercial Code, a counter offer acts as a rejection of the offer to which it responds. Thus, not only had the parties not agreed, but, by making a counter offer, SNG had rejected the offered stipulation. (Just goes to show that legal education is about as effective as sex ed is.) Thanks to overreaching that could only have come from the client, rather than the lawyers, SNG, the party that needed the toll the most, was now going bare, as it will be on April 2, 2008 at 9:30 am. It probably seemed like a good idea at the time.
Also of note, if you’ve been living under a rock for the last couple of days (still worth noting), while training onboard the Foncia 60 foot ORMA class trimaran outside of Lorient, France, the Alinghi team capsized while bearing away (turning through the wind to go downwind…as if rounding a windward mark). Winning Alinghi helmsman and American, Ed Baird, was at the helm at the time. Two sailors were airlifted to a local hospital with reportedly “minor injuries” while the boat suffered a broken mast and broken rear beam. This happening brings up a lot of questions; mainly, are a bunch of sailors who are used to having 50,000lbs of lead under them up to the task of racing an overpowered super-light multihull in a short 10 months? I bet this capsize will also make them wonder this same question and they start hiring some high-end multi-hull skippers.
PS – watch out for the April Fool’s articles tomorrow…this tradition is starting to get boring.
