The dust around the America’s Cup litigation, stirred by the recent judgement from the New York Courts in favor of the American / GGYC team, is starting to settle enough to see some options in the near future.  One of a few things are going to happen; 1) GGYC and SNG negotiate an agreeable multiple challenger series in the near future 2) GGYC and SNG act like their negotiating an agreeable multiple challenger series but only to a means for delay (on the part of SNG) and on some minor irreconcilable difference we end up in a one on one DoG fight or 3) SNG refuses to come to the table and we immediately start court proceedings to get SNG to provide the information needed for a race.

Which one will happen?  I think SNG is strapped for cash and might actually be in favor of a cost controled multiple challenger event.  However, it’s hard to tell how much of the chest pounding proclomations were all for show, or how much was heart-felt leading up to the final court decision.   I think it all boils down to whether or not SNG believes that they can pull off a competitive boat to meet GGYC.  They’ve already seen a vision of their monster – though nobody has actually made the claim that this is the official challenge yacht of GGYC.

Both parties have now made a pretty vanilla statements – GGYC taking the high road stating simply that they are talking but will not be public about any of the talks in the hopes of reaching a quick “conclusion”.  I don’t like picking at words, but using “conclusion” instead of something like “agreement” probably speaks volumes.

BMW / Oracle / GGYC wins the appeal and are now the official challenger of record! More details and analysis soon.  The ruling by the judges was a unanimous 6-0 – that’s solid.

We could possibly have a final, final, final ruling from the New York State Court of Appeals today with regards to the America’s Cup….stay tuned.

The Appellate Division of the New York court system shocked the sailing community yesterday with a complete reversal of the America’s Cup case of GGYC (BMW/Oracle) vs. SNG (Alinghi). In a nutshell, three out of the five judges deemed that Justice Cahn’s ruling to date were null and void and reinstated CNEV (Spain) back in as the official Challenger of Record (COR). Nobody was ready for this ruling and I don’t believe that CNEV, the yacht club, technically exists anymore after they disconnected their phone, removed their board of directors, and admitted they were a legal adjustment put in place just for the America’s Cup.

The judges went back to the word “having” and determined that in this sentence from the Deed of Gift (DoG) that the wording is ambiguous and does not necessarily mean that the club must have already had regattas as Justice Cahn had determined. Because it was deemed ambiguous, they went back to precedent and determined that clubs that did not meet this requirement were allowed to compete in years past in the challenger series – Alinghi is one of them. Alinghi has never been the official Challenger of Record but competed in, and won, the challenger series and beat New Zealand in the finals several years ago.

Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match of this Cup…

The dust is still settling from the surprising result and while some commentary I’ve read questioned the ability of the judges to make some of the leaps they did, the fact that two of the three judges strongly dissented the ruling automatically gives BMW/Oracle the right to appeal the decision. The BMW camp is “evaluating their options” at the moment and Alinghi is touting justification of everything to date. It’s undoubtedly a black eye for BMW but I do think we’ll see them file a strong appeal. Rumour has it that their DoG Monster catamaran/trimaran is mostly ready for launch…but now it has no event….for the moment….

The New York Supreme Court held the hearing of appeal from SNG yesterday and we should hear a ruling pretty soon. The motion by SNG (Alinghi) is to, basically, appeal everything Justice Cahn has had to say about the case; whether CNEV was a valid challenger, the definition of the challenging yacht (regarding the words “keel yacht” in the challenge), and lastly the date of the event.

According to Cory E. Friedman, who is providing some great commentary on the specifics over at Sailing Scuttlebutt, there was a great deal of pressure placed on SNG’s lawyer, Barry Ostrager, by the Appellate Panel. As Mr. Friedman puts it, “…the bench, which was not just hot, but red hot, lit into him from the start.” The questions came fast and furious of Mr. Ostrager and he was not given much time to respond. By contrast, the representation for GGYC, Jim Kearney, had it easy as the questions came with little pressure and plenty of time to respond.

So what does all this mean? 80% of the time the Appellate panel upholds the previous judgements. Their questioning certainly wasn’t very kind to the SNG position and they did inquire of both sides why arbitration failed (which, in my opinion, really hurts the case of SNG since they refused arbitration on several occasions). It’s very likely we’ll see all of the decisions upheld with perhaps an exception to the date issue. GGYC made an argument that the date of the event should be sooner and the Panel does have the option of modifying the ruling. Mr. Friedman believes that there is a small chance that the date of the event may be moved up 6 weeks to May 1, 2009 and that we should have a ruling sometime later this month.

The America’s Cup teams (both sides) have capsized Volvo 40’s in the last two weeks. Here’s a video of Alingi flipping this morning in Europe…it’s a steep learning curve to go to one of these boats in conditions as gusty as seen in this video! The Holmatro boat almost went over too but they seemed to get the bow up just in time before the foils in the water, typically known as “rudders”, became “elevators”.

So here’s where we are with the America’s Cup. Alinghi has filed for an appeal on the entirety of Justice Cahn’s rulings to date and asked for an expedited hearing. They got the expedited hearing and it’s scheduled to happen on June 5th. BMW/Oracle filed to have the whole thing tossed – we’ll hear more about that on June 5th but the word on the street is that Alinghi has very little chance of success with the appeal.

Meanwhile, we’re still waiting for Cahn’s ruling regarding the date of the event. One would presume that he has delayed his ruling due to the appeal filed by Alinghi – which could potentially negate anything he has to say (so why bother?). His ruling could come out any day but don’t hold your breath.

Across the pond, Alinghi has announced that they have begun design of their DoG boat and will be ready for a May 2009 event…as if repeating 2009 will magically make the October 2008 date go away. That’s the nutshell.

Not only before “the ink dried” but before the pen even hit the paper, Alinghi files for appeal on the whole shebang today with the New York Supreme Court. From Alinghi’s website, Lucien Masmejan (SNG lead counsel), explains their latest maneuver…I’ve dissected it a little inserting my own commentary:

Why have you appealed?
Our goal is to have it decided on the water and have a competitive America’s Cup in 2009.

Cough, cough, Gaggg…huh? Seriously? Let’s roll through this briefly; I paraphrase; we filed for appeal asking for a stay (delay) so we can compete on the water, not sooner, in 2009. What’s wrong with 2008? Besides, your rights as a challenger are very clear – you can’t touch the date! You pick the place…focus here…please focus…we’re waiting for the place, not the date.

We are in the process of appealing and filing a motion to request an expedited appeal and to stay the case in order to attempt to fast track the legal process.

Here’s an idea; fast track it by NOT FILING APPEALS and specify the place for the event!

We have spent eight months engaged at trial court fighting a law suit brought by GGYC to force their way to the America’s Cup Match at the expense of 12 other challengers.

Ummm…no – actually GGYC tried several times to find an agreement with you that would INCLUDE the other challengers…and wait a minute – 12? Who ever said there were 12?

Justice Cahn’s order dated 17 March 2008 left key elements unanswered, including the dates for the event. Since then, we had a hearing with Justice Cahn but we still have no certainty as to the ruling. We are now less than 3 months from the dates indicated in the original GGYC challenge and we still do not know when the 10 months notice has started and which will be their boat.

Actually you do have a date as was stipulated in the official challenge by GGYC – YOU contended that date in court and YOU are the reason we are waiting for a ruling regarding the date. Establishing a date is not the responsibility of the court – they just interpret the deed and the law and apply it to the situation.

In that respect, the Challenge submitted by GGYC on 11 July 2007 does not supply the information prescribed in the Deed of Gift and is not only ambiguous but also contradictory in places. GGYC are now tactically withholding the custom-house registry and vital technical information regarding the boat that they will challenge with from the defender. This tactic is against the terms of the Deed of Gift and most certainly in contrast with the intentions of George Schuyler.

The Deed leaves a bit to be desired in this area – as well as another area, in my opinion, Alinghi is guilty of exploiting. The Deed does not explicitly specify WHEN the registry of the challenging vessel needs to be presented and it also doesn’t specify explicitly WHEN the location needs to be announced by the Defender…and we’re still waiting on that piece of information too….seeing as GGYC doesn’t know the location of the event, it’s kinda hard for them to finalize the technical details of their vessel (are we racing in the Southern Ocean or the shifty calm of something near the equator?). It’s pretty clear that the wording of the Deed assumed that a defense mounted by a club would be done so in their home waters. Given that it was written in the 1800s, it also does not take into account that we can fly boats to any location in the world in a matter of days nor does it consider that there would be a defender from a landlocked country.

There’s about 70 pages of the official appeal documentation on the GGYC website. While I’m certain there are loads of golden nuggets in there, I’m going to sit back and wait for the legal analysts to dissect this one. Tomorrow’s news should be interesting.

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.

Vincenzo Onorato of the Mascalzone Latino (the previous Italian Team) issued a very powerful letter this morning about the status of the America’s Cup and provides some pretty damning insight to the dealings with Alinghi – I’ve only just now had some time to read it. Alinghi once used the fact that Mascalzone Latino had signed up for the 33rd protocol as evidence that their protocol was fair and just. Vincenzo explains that this is pretty far from the truth because they had only signed up due to word of a 2nd Italian challenge starting up. They wanted to ensure that they were not denied a position in the event by Alinghi if there was another Italian Challenge. Vincenzo also goes into some detail about how their challenge was accepted in consideration of the declaration they had filed with the New York Courts as part of Oracle’s stance. Vincenzo strikes me as one cool, very thoughtful, and sharp dude.

Since the start of this letter, I have given Alinghi credit for the fact that the affair has an underlying sense of comedy, although this is probably unintentional. Following the launch of the challenge, ACM sent us an invoice for fifty thousand euros which we paid immediately. Are we perhaps the only ones to have done so to date? They replied in writing that they would accept our challenge only if we withdrew our declaration filed with the Supreme Court of New York. This is not required by the protocol, but it is clear that Alinghi writes and rewrites the rules to suit its needs. I answered by reminding them that a citizen accepts the laws even if he doesn’t agree with them and that in a democracy there is freedom of speech and criticism. The simple metaphor was not understood. ACM/Alinghi replied by claiming a public abjuration. It would have been pointless to remind them that the last Italian forced to make such a strong retraction was Giordano Bruno, in medieval times under the Holy Inquisition.

Read the entire letter at BYM News

While I had hoped to be able to announce yesterday that a date has been set for the America’s Cup match on monster 90 foot multi-hulls, it didn’t happen. Alinghi/SNG claims that OracleGGYC came to the table with no willingness to budge on the date – Oracle isn’t saying much at all other than they don’t “wish to disclose details of the discussion at this stage.” Alinghi filed for a hearing again with Justice Cahn for a ruling – obviously hoping to move the date due to the delays caused by the court hearings. GGYC pleaded the court for a quick hearing. Cahn delivers and, this afternoon, granted the hearing date for next week to hear arguments (but as in the past, there’s no guarantee for the delivery of a ruling).

Here’s the bit of the Deed of Gift language in dispute;

…The Challenging Club shall give ten months’ notice, in writing, naming the days for the proposed races; but no race shall be sailed in the days intervening between November 1st and May 1st…

It certainly doesn’t say what to do in the event the match is contested in court but it clearly says “The Challenging Club shall give ten month’s notice…”. GGYC did give ten months (actually 12 months) notice with their challenge. GGYC first filed motion that SNG has accepted an invalid challenge and that theirs should be the valid one. That was ruled on by Cahn making GGYC the official challenger based on their challenge. SNG then filed back to the courts disputing the validity of the same challenge because it included the phrase “keel yacht”. The Court dismissed this claim and again pronounced the GGYC challenge as the official one. The only official challenge is the challenge filed by GGYC in October….and it had the minimum 10 month challenge in it. I really don’t see how Alinghi is going to get out of this…even more so than the last motion they filed with the court.

The request for hearing to Justice Cahn issued by SNG/Alinghi’s legal team REALLY struck me as arrogant and bound to fail. In it, they dispute every ruling the Cahn has previously made in this case but then plead for more time to prepare for the match. They also hollowly claim that the Deed of Gift “Requires the Defender be Allowed No Less than 10 Months to Prepare for the Match”…read the verbiage from the actual deed in the above quote again and see if you agree with me that that is not even close to the the context provided in the wording of the Deed. Read Alinghi’s letter for yourself and decide. Hopefully this shouldn’t take long to hear from Cahn this time.

Apparently I got my days mixed up about the meeting in Valencia between BMW Oracle and Alinghi – the meeting took place today and the outcome is…back to court. It appears that Alinghi was unwilling to conceed any rights to have the date moved back so now they claim to start contesting the BMW Oracle claim that the 10 month period specified in the Deed of Gift applies from the date the valid challenge was submitted to the defender or if it should be extended because of the ensuing court case(s). Here we go again. We should make a drinking game out of this….but on second thought, that would be a really loooooong game.

This coming Thursday, the teams of Alinghi and Oracle will meet in Valencia to discuss the date and/or specific terms of the DoG multihull match for the America’s Cup. At present, Oracle is saying that as per the terms outlined in the Deed of Gift, the match is to take place 10 months from the date of the formal challenge. The New York courts have upheld that the American team’s challenge is indeed valid so that gives Alinghi until July 2008 to prepare to meet Oracle on 90 foot multihulls in a place of their choosing. It appears that the general consensus is that if this went back into court again, that the time frame would also be upheld as it was Alinghi causing delay through additional legal action or refusing to negotiate that got us to this point.

So now what? Alinghi claims that they can’t possibly be prepared for a July 2008 match and have a 90 foot monster ready and have repeatedly insisted on a date set in July 2009. On one hand I feel a little sympathy for them, on the other I have to wonder if they’re telling the truth (or possibly trying to fulfill some other left-over contractual obligations from canceling the scheduled 2009 cup in Valencia), and on the other, I think it serves them right for causing all this mess in the first place by trying to redefine the America’s Cup in their favor and dragging this court case out to ridiculous lengths. Grant Dalton, via a Sailworld.com article (HERE) had this to say about the situation:

‘Why wait and give Alinghi time,’ he asked.

‘Alinghi created this environment we are in. Oracle can and should give them no favours, because there have certainly been no favours given to them, or any of us, by Alinghi.

‘Oracle’s intention was to get this back on a regular footing with rules that were more fair to everybody. That whole strategy is still in place.’

‘It is very frustrating when Alinghi who are slowly but surely getting punished, stuck with their stance of non-negotiation, and would probably have had to give away about half a marble of their from their bag of 100 marbles to get the whole thing back on track in October last year.

So the two parties are meeting in Valencia to discuss the date of the match. The Deed of Gift goes on to to say (I’m loosely paraphrasing) that a match held in the first half of the year should be held in the Southern Hemisphere. There are several advantages that a defender can get by specifying a location as locations can vary widely in typical wind speed and wave state. Alinghi is probably going to have to barter in order for the team of BMW/Oracle to agree to move the date. The only thing they have that would be of value to BMW/Oracle would be rights granted to the defender by the Deed such as determining the location of the event. It may also come down to establishing event parameters such as maximum wind speed or perhaps even modify the type of course and number of races. Alinghi is really over a barrel here because A) they claim they weren’t preparing for the match at the time the challenge was received, B) because their inaction in addressing any of the requests of BMW/Oracle left them no other option but to file with the courts, and C) due to the frivolous secondary court action Alinghi pursued. I’ll keep you posted on the outcome of Thursday’s meeting…if it happens.

Justice Herman Cahn finally rolled out from behind his desk today and reconfirmed the November 27 decision that GGYC (BMW/Oracle) is the valid challenger for the Cup. The claim by Alinghi that the challenge should be null and void because it included the phrase “keel yacht” is out the window. Alinghi has already made it clear that they did not wish to take up GGYC’s offers for a conventional regatta so we’re going racing on 90 foot multihull monsters! I think I predicted this pretty early!

The date is a bit up for grabs now – GGYC is pushing for October because it doesn’t feel like the legal wrangling on behalf of SNG should be cause to delay the timing of the match from the submission of the original challenge. SNG is pushing for July 2009.

Right, wrong, or indifferent, one thing is for sure. This is going to be one of the most exciting (and potentially short) America’s Cup matches in all of the history of the world’s longest cup challenge.

Next up? Tons of scuttlebutt about what these boats might start to look like and more wrangling regarding the date of the match. Will they foil? Can a foiling boat go to weather efficiently? I know their either going to be cats or trimarans (everyone keeps saying cats but I’m thinking they may be trimarans for windward performance or some sort of hybrid between the two to stiffen up the centerline of the boat).

~insert evil multihull sailor laughter here~