NY Court Nixes Ellison Injunction (No Con of Cahn, so to speak)

Justice Herman Cahn of the NY State Supreme Court (the first level court for lawsuits in that state) navigated the fog of legal-speak this week that the preliminary injunction sought by the Golden Gate Yacht Club (representing Larry Ellison/BMW/Oracle Racing) against Defender Alinghi Ernesto Bertarelli et al) WILL NOT BE UPHELD. There will be no speed-up of the countdown to trial, no pre-trial speed-up of document delivery (legal discovery), and no speed-up release of the sailing venue and rules for the BMW/Oracle (ex-Challenger of Record) sought-after catamaran race (July 2008) between the official AC22 (2007) and AC33(2009) matches. These matters may soon be as dead in the water as PCBs from GE in the Hudson River.

Resolve this among yourselves, guys, Judge Cahn calmly chided the ex-Challenger of Record. You gotta love this somewhat obvious outcome. But the Californians felt they should try anyway. At least both sides appear to be happy (enough) at his ruling, according to their public statments.

The Court also suggested that Alinghi et al move forward with a motion to DISMISS the case, anticipating they would then move for a “SUMMARY JUDGMENT” for both parties to resolve their differences without delay and without trial, sometimes called a “best case scenario” by some, certainly by the Europeans, assuming the winners usually take all the spoils going forward.

Here’s the Court’s ever-so-helpful Day Planner dates for concluding these legal matters:

By Sept. 17 – Alinghi must move to dismiss the GGYC suit (why didn’t they think of that?)
By Oct. 1 – GGYC must file ITS opposition to motion to dismiss and then must file its own summary judgment, to settle their differences off-line (whether they want to or not)
By Oct. 5 – Alinghi must reply to GGYC motion to dismiss the suit (OK, if you force us)
By Oct. 15 – Alinghi must oppose GGYC’s summary judgment (can’t we do this right now?)
By Oct. 19 – GGYC must reply to GGYC’s opposition to summary judgment (is anyone lost here in this adult game of Not-It?)
On Oct. 22 – The NY Court holds a hearing on ALL THESE MOTIONS and counter-motions, yells, screams and threats. (And there won’t be a joint, congratulatory dinner afterward.)

Got it? Dismiss & counter the dismissal; resolve & reply to resolve or resolve to reply or some such nonsense, keeping the lawyers’ client-hours ticking, (e)motions flying and the legal avalanche of paper precariously balanced until Oct. 22, when the Court steps in as a White Knight to slay the dragons (force mediation?) and toss the lawyers back out onto their cigarette boats.

That’s the SECOND BIG NEWS Alinghi-ans (Alinghi-ites?) received this month. On Sept. 17th, the newly created Arbitration Panel under America’s Cup Management (ACM) for the 2009 races ruled favorably (shock/awe) regarding the validity of the quickie selection of a small (some say, paper-only) Spanish yacht club as the Challenger of Record, charged with setting a number of activities for all of the Challengers in 2009, including the expected entry from Larry Ellison, Oracle Chief Executive Officer, and his zealous legal bulldogs (see below). The Arbiter’s ruling, including compliance with the Deed of Gift, will be included in the ongoing (now paper-tiger) suit.

GGYC had sought an earlier date for the TRIAL to begin, and for the schedule for information exchange between the Defender (a.k.a., Cup Winners/Holders) and the Challengers (5 so far, plus the expected BMW/Oracle juggernaut, consisting of 30 sailors and 50 corporate litigators, ex-public defenders, personal-injury lawyers and divorce attorneys, it’s said, which may even be somewhat true!). You Alinghi guys gotta tell us where we’re gonna have this-here Defender-Spoiler (Non-Challenger of Record) catamaran race that we dreamt up and proclaimed as fair one night after a few Cuba Libre’s at Allioto’s on Fisherman’s Wharf.

GGYC ALSO had hoped (and prayed, perhaps) that the Defender would lee-bow (that’s daring-do and furiously) provide - - and quickly - - the CLUB SAILING RULES for the next match races AND wants the Defender to identify WHERE a preliminary Defender-Oracle/BMW cat-challenge would be held a year earlier (on July 2008) than the next Cup (expected as early as July 2009 in Valencia, Spain). Obviously, everyone wants the rules as soon as possible so they can find all the loopholes and begin bending them to taste

Recall: The BMW/Oracle team quickly imploded in the early trials of this year’s America’s Cup. No one knows quite why (if they do, they aren’t saying; payoffs are out, these are, for Pete’s Sake, billionaire-funded teams), especially since they were among the favored teams and had the most exciting new technologies, supposedly and, for sure, top boat speed. But as all sailor/racers know, it takes a lot more than good boat speed to win a race. It takes winning strategy, skipper & crew skills, favorable wind shifts, gear durability, and luck, only some of which they apparently had.

Official, named parties to these legal maneuverings:

Defender (Alinghi) – represented by Societe Nautique de Geneve (SNG), (Hamish Ross)
Challenger of Record – represented by club Nautico Espanol de Vela (CNEV), (David W. Rivkin of Debevoise & Plimpton)
vs.
Ex-Challenger of Record (Oracle/BMW racing) – represented by Golden Gate Yacht (Tom Ehman) Club in San Francisco, Ca.