April 24, 2013

ILCA Defamation of Bruce Kirby

by Pam

Let’s make this real simple.  The ISAF just approved the ILCA’s “Fundamental Rule Change” in which many feel they mislead the members into a rushed vote that many would have changed had the facts been presented accurately.  This is WRONG, WRONG, WRONG!!!

Let’s just focus on one statement that the ILCA stated as a “fact” and that has been repeated erroneously, and often, the most recent occurrence being yesterday by Sailing Anarchy. 

ILCA Fundamental Rule Change:  “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 Bruce Kirby held certain design rights. ...The lawyers also informed us that the Kirby design patents had in fact expired.

Sailing Anarchy:  Any ‘design patent’ he [Bruce Kirby] may have had on the actual boat design has long since expired

Now, step into the shoes of that attorney (law firm) to whom the ILCA allegedly paid $60,000+ dollars of our membership money and see if you come to the same conclusion when glancing at just one diagram from each of the only two patents Bruce Kirby has anywhere in the world.  

I know a two year old might struggle a bit but even a freaking five year old wouldn’t make this mistake.  I have to wonder if the attorney committed malpractice (and this would be a pretty damn basic mistake) or if the ILCA spun the truth and deliberately mislead the members.  Technically, Kirby’s design patents had in fact expired … for a freaking toy ... and some design with a jib!  See for yourself:

 __________________________________________________________________

Kirby Design Patent Number D373,156 - Expired Aug. 27, 2010




____________________________________________________________________

Kirby Design Patent Number D304,922 - Expired Dec. 5, 2003


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Civil Jury Instructions from the State of Connecticut regarding DEFAMATION:

A defamatory statement is a false communication that tends to harm the reputation of another; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held; to deter third persons from associating or dealing with (him/her); or to excite adverse, derogatory, or unpleasant feelings or opinions against (him/her).

To establish a case of defamation, the plaintiff must prove the following:
1.      the defendant published a defamatory statement to a third person;
2.      the defamatory statement identified the plaintiff to a third person; and
3.      the plaintiff's reputation suffered injury as a result of the statement.

Since the ILCA is real big on letting the courts decide … maybe Bruce should file another suit and do just that.  I can't see how it's not a slam dunk of a win.  Oh, and if I understand it correctly, the right to bring suit even passes to his heirs.  No putting that genie back in the bottle.

Correction:  Bruce Kirby has three design patents in the world instead of two.  The third  is CA61775, the Canadian version of the second diagram above. NOT A LASER. 

20 comments:

  1. I am one of those that regrets voting and approving the Fundamental Rule Change. The statements made by ILCA were materially incorrect and the case for both sides was never adequately presented. The vote was deeply flawed in content and process. I believe that using that vote as the platform going forward will come back to haunt the class.

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  2. I get that the statement is incorrect, sure, but defamatory? What damage does it do to Kirby? I don't see that it really matters.

    redstar

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    1. I suppose it could be encouraging the ILCA/ISAF to cut BK out of his contractual rights for royalty payments. If they were spreading untruths (or misleading info) that could encourage LPE et.al to believe they don't need to or would get away with not paying BK what we are told they were owed ?

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    2. A false and misleading statement that caused people to vote to separate a designer from his pride and joy. Even without the financial harm, separating him from his design must feel very much like an assault.

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  3. The mis-statement about patents was published by ILCA on March 23 2011.
    The statute of limitations for filing a lawsuit for defamation in Connecticut is 2 years.
    Today's date is April 25 2013.

    The protest time limit has expired.
    Protest dismissed.

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    Replies
    1. Yes the SOL is 2 years. Is that from date of first publication, last publication, or re-publication (movement of location on a website) or date of discovery of harm done. To have sued at the outset would have been heavy handed. However, having been misled into believing, like all of us, that the vote would be set aside because there was indication that the publication might had misled the members, it was reasonable to delay taking action. The SOL can be tolled in certain circumstances. Only a court of law can determine if this qualifies but it would certainly be reasonable.

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  4. Who told you that "the vote would be set aside because there was indication that the publication might had misled the members"?

    I don't recall any announcement from the Laser class to that effect.

    I thought that the reason why ISAF didn't approve the change was never officially communicated.

    But maybe I slept through that part of the movie?

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    Replies
    1. I'll look for it. I seem to think it might have been a private communication from Tracy Usher to several people including Bruce with the implication being that the ILCA had discussed the issue. This was back when Tracy was trying to stop the vote from going through. I recall seeing mention of it being set aside and took a deep breath and relaxed thinking Bruce wouldn't get screwed. I'll either post what I saw when I find it or I will send it to Bruce to use.

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    2. Found it. Personal email from Tracy to a group of sailors that could be deemed a republication of the proposed rule change and it's inside the 2 year statute of limitations. There is another posting somewhere that I can see in my head and it makes reference to the potential for re-doing the vote because a class representative made statements that might have further misled the voters.

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  5. It would be good to have a petition to ILCA to redo the vote with accurate and correct information in light of the current events.

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    Replies
    1. Amen. If they agree to redo the vote then they're acting in good faith and in our best interests. If they do not, then they are not neutral as claimed and have their own private agenda.

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  6. I agree. It may not seem this way but I don't consider the current class management to be responsible for this mess. I do think their inaction has made bad situation worse and their lack of communication makes me wonder if
    they all just got caught up in a machine that doesn't give a damn about what they think either. There appears to have been one master plan driving this whole mess and it hasn't diverted course since day one regardless of the new officers, whom I wouldn't have thought capable of such callousness.

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  7. I think it's very simple.

    BK says his rights to royalties are based on his contracts with the builders. If he is right then he will win his court case. If he is right and the contracts are valid then I don't see how the Laser class changing its rules will have changed the validity of those contracts. Good luck to him.

    If he is wrong and the contracts expired or weren't binding in the first place or weren't properly transferred to the current builders or are otherwise ineffective for some other legal technicality, then he's had a good run and has made a nice pile of money from the Laser over the years. All good things come to an end. Good luck to him.

    I think the class got caught up in the middle of this. They didn't start the war. I tend to assume that our voluntary class leaders, who give up enormous quantities of their own time, are doing it because they love this game even more than I do and that they they are honestly trying to act in the best interests of the sport and the people like me who love to play it. Have they made a few mistakes along the way? Probably. Are they guilty of "callousness" or "defamation"? Surely not. Please give them a break.

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    1. Oh Tillerman, I wish I could. Life would be so much easier. But I learned a long time ago that I stand up when others sit down. I just can't help myself. I see Bruce as a father figure who has had his heart broken by all of this and he deserves to be treated better. If he was a ruthless businessman that could hold his own, I'd be more inclined to sit back and watch the show but instead it feels personal and it feels wrong. I don't hold many of the officers responsible but I'm disappointed that they didn't stop is train wreck.

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  8. I don't see how the Fundamental Rule change could be legal anyway. To vote you didn't need to own or be a member of any Laser Class association. I know this because I voted and at the time I neither owned a Laser nor was a member of my district association.

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    1. Incredible! I'd like to see the audit and accounting on that vote. I imagine that will be requested in discovery. It should be revealing.

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  9. I bet the farm that 'ILCA spun the truth and misled the membership" in order to get folks to vote in favor of that rule change.

    Btw, are you sure it wasn't 60,000 pounds of the members' money Jeff Martin spent on the incompetent lawyer?

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    1. You're right, he spent even more! We look forward to seeing the legal advice the ILCA received that will undoubtedly come out in the current litigation. Either the lawyer committed malpractice or the ILCA "spun the truth" as you say.

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  10. Pam,

    Can you post Tracy Ushers email here, or did it specifically say it was not for publication?

    Otterbox

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    1. For now, I think I'll refrain from posting the email but I did send it to Bruce's attorney. I understand that things might get dicey for Tracy so I don't want to add fuel to the fire just yet. Defamation has a two year statute of limitations but fraudulent misrepresentation has a three year statute. This stuff could get serious real quick. It's just a matter of how far they force Bruce to go.

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