August 17, 2016

Kirby v. Laser Performance, et al.

by Pam
And we finally have a decision on the pending lawsuit ...

(of a 14 page Order from the Judge)
For the foregoing reasons, the motion for summary judgment by LPE and QMI (Doc. #186) and the motion for summary judgment by ILCA (Doc. #183) are GRANTED in light of my conclusion that plaintiffs Bruce Kirby and Bruce Kirby, Inc., have no standing to maintain their claims. The motion to dismiss by ILCA (Doc. #174) is DENIED as moot in light of the granting of its motion for summary judgment. The motion for summary judgment by counterclaim defendants Bruce Kirby and Bruce Kirby, Inc. (Doc. #180) as to several of the counterclaims asserted by counterclaim plaintiffs LPE and QMI is GRANTED in part (as to Counterclaims III and IV) and DENIED in part (as to Counterclaims V through IX). The motion for summary judgment by counterclaim defendant GSL (Doc. #184) against LPE and QMI is GRANTED in part (as to the claim of overpaid royalties for the Laser Radial and Laser 4.7) and DENIED in part (as to the claim of overpaid royalties for packaging).

But what does that mean ... basically, it appears the court is recognizing the sale of Bruce Kirby's intellectual property rights to Global Sailing and not recognizing the return of those rights to Bruce.  So, really it's just a passing of the torch (pun intended) to Global Sailing.  Global Sailing can now bring suit against Laser Performance and begin another 3 years of limbo for the Laser class. 


  1. I find it totally amazing that after all these years it turns out that Bruce Kirby had no standing to sue the Laser class or the Laser builder in the first place.

    When we have a protest meeting in sailing, one of the first things the protest committee has to decide is whether this is a valid protest. Was it filed on time, did the protestor hail "protest", was the protestor involved in the incident or a witness to it, etc. etc. ? If it's not valid, then the protest is denied and everyone goes to the bar and has a few beers together.

    I know the issue of Kirby's lack of standing is a little complicated as there were legal questions to be resolved about whether his initial sale of rights to Global Sailing was really valid in light of his failure to secure ISAF approval, and then whether his partial buy-back of some rights was enough to give him standing to sue.

    Can you explain why this decision on standing took so long?

  2. The US legal system at its best!

    Actually, when you read the Order, you can see that he had to sift through a lot of crap from all sides to piece together all the he said/she said allegations and then apply legal precedent to a variety of issues. I have to admit, reading the order is the first time I was able to piece together the entire sequence of events that took place.

    Imagine if you had to sift through all the arguments put forth in SA's Dinghy Anarchy and apply legal precedent to them all and figure out what was a legitimate claim and what was BS and then try to figure out how all of this unfolded and then decide who even has the right to make the claims. I can see how with everyone pointing at someone else, that it was a lot of information to digest.

    Bottom line though, we may not be done. Seems to me that BK/BKI could refile today and join GS as a plaintiff and we're back at square one. Or GS could file today as plaintiff and begin anew. The Judge did not say that BK/BKI didn't have a case and didn't have the right to sue at all but that BK/BKI didn't have standing to sue without joining GS.

    But ... there are other ways to handle this whole situation and maybe someone will utilize another method.

  3. I sincerely hope it is over. Another three years of this nonsense will not be good for the Laser class.

    As you know, during this lawsuit, I bought an RS Aero (and still have my Laser.) At the RS Aero Nationals this weekend I had the chance to have a long chat with one of the designers of the Aero who is also the managing director and part owner of the builder. What a refreshing change to talk to a designer who is supporting the class (not suing it) and a builder who is committed to growing the class and is putting his company's money behind that effort. I guess the early days of the Laser may have been similar but they sure aren't any more.

  4. Well, as you know we are supporters of Bruce Kirby. I never saw this as Kirby suing the class so much as Kirby doing what he thought was in the best of the class longer term.

    I sort of saw it as a patient (ILCA) with cancer (LPE). ILCA wanted to go the alternative treatment route (Fundamental Rule Change) but Kirby went the chemo route (lawsuit). Not the most pleasant thing to go through but the ultimate goal is to kill the cancer. It seems to me that the ILCA still has cancer. I would love to see it go into remission, but if not, maybe another round of chemo will be necessary.

    I’m reminded of the Chinese proverb quoted in “Charlie Wilson’s War” … ‘we’ll see’

  5. So the ultimate goal of all this was to "kill" LaserPerformance? Is that what you are saying?

    1. Something like that. At the time, quality was down, availability of parts was limited, cooperation with the class was sketchy. I'm not convinced the relationship between the class and LPE is all that great now.

      The email exchanges that were made public during the proceedings indicated the class was almost being held hostage. Just my interpretation of things. Might not actually be that way.

      I've done zero research and could be way off base but have to wonder why the worlds were announced for Adelaide, AUS in PSA's territory and then suddenly they were out and Croatia (LPE's territory) was in.

      But what do I know. I learned long ago that I don't see the world the same way as most.

    2. This comment has been removed by the author.

  6. Well, it seems like you agree with LP, that all along this was a conspiracy between Kirby and Global Sailing to take LP out of the business of making and selling Lasers.

    I must admit I was prepared to believe that Bruce's original intentions were innocent - even if he was a bit naive. But you could be right.

    1. Oh for heaven's sake, behave! You're turning my blog into SA's Dinghy Anarchy. Twist my words if you like but a Kirby/GS conspiracy is laughable. An 87 year old man is winding down, not ramping up. But LP ... talk to folks who used to work for LP and saw the games being played. We're in for a bumpy ride.

    2. Sorry /Pam if I misunderstood what you were saying. You seemed to agree that the ultimate goal of "all this" was to "kill" LP whom you likened to a "cancer." Perhaps you meant that this was your wish, rather than Mr Kirby's original goal?

      I guess none of us can really know what Bruce's real motivation was. I was prepared to give him the benefit of the doubt - even voted the way he wanted us to in the class rule change election - but he lost my support when he sued us, the class. And I am very pleased that the judge dismissed Kirby's complaint agains the class.

      I have talked to people who used to work for LP. Some of them are certainly very bitter about their ex-employer but that's not unusual. Like them or hate them, they are the trademark holder and the only current legal source of Lasers in our part of the world.

  7. We spoke with Bruce and his attorney before the lawsuit began. We also corresponded with some of the class officers both before and after the lawsuit began. Even got a note from one of LP's attorneys. The concerns each expressed were very telling. I've said before that Bruce and the ILCA were more in alignment than not and despite appearances and what has been said and done, I remain convinced that it is still true today.

    Each had a position that made sense for them and I understood their points of view and why they those chose the course of action they did. I found myself more aligned with Bruce as far as what was best for the class for reasons I described above plus many more. I can't say those where his reasons because we did not have any such conversation. I certainly understand why others would not agree with his chosen course of action but I was not one of them. And while many agreed with the actions of the ILCA, I absolutely did not agree with their actions and do not think it was in the best interest of the class. I understood them, still like the individuals that made those decisions, but I do not agree.

    As Doug is fond of saying, if two people agree on something then one of them is redundant. I do think that people need to find healthier and less costly ways to communicate and settle their differences of opinion.

    1. I agree. It's so sad to see these millionaires fighting legal battles over how to divide the dollars they make from us Laser sailors.

      It may not be the main reason but it's certainly one factor that has driven me to also sail a class where the designer and the builder and the class actually work together for everyone's mutual benefit. Such a refreshing change.

  8. I believe any future classes, designers, builders, etc. will learn some valuable lessons from this Laser mess. For years the contracts really didn't matter much because everyone was aligned and everything went right. Then somewhere along the lines folks were no longer on the same page.

    It is when things go wrong that the legal work done in the beginning starts to matter most. In this case the legal work done in the beginning wasn't as clean as it should have been. But it's pretty hard to draft agreements looking 40 years down the road. That's the successful part of all this! But isn't it interesting that the lawyers always win regardless of whose side they are on and whether they draft clean or sloppy agreements. I would have to say the legal work is a primary contributing factor in this Laser mess.

    Before agreements are signed, folks should review those agreements as though the are facing their mortal enemy. A lot of legal battles could then be avoided.


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