It was bound to happen. We've exhausted our supply of wisecracks about the America's Cup litigation, which we've covered, inexplicably, for a year now. (Our two most recent posts are here and here. But try though we might, we can't seem to stop the courts from handing down rulings in this interminable battle. And since we're in this deep (our last oceanic pun), we're determined to see this thing through. So here's an update based on the Thursday order from New York Supreme Court Justice Shirley Kornreich, organized for your convenience in helpful bullet-point fashion.
• First: Alinghi, the defending champ, sponsored by the Swiss-based Societe Nautique de Geneve, promises to reveal on Thursday the Northern Hemisphere location for the February 2010 race. The race was originally scheduled for July 2008, but has been delayed endlessly as billionaires Larry Ellison and Ernesto Bertarelli have bickered over the date, location and even proper challenger for the title now held by Bertarelli's Alinghi syndicate. (Earlier this year, in what we naively thought would be the last word in the litigation, the New York Court of Appeals found that Societe Nautique was wrong to accept a challenge from Club Nautico Espanol de Vela, a Spanish team. The court ordered the Swiss club to schedule a race with an American contender, the Golden Gate Yacht Club, which sponsors Ellison's BMW-Oracle team.)
• Second: Societe Nautique is still trying to get Golden Gate disqualified, or at least to force the American club to cough up registration documents about Ellison's boat. Under the controlling Deed of Gift that spells out the rules of the race, the challenger must provide the defending champ with registration information about its yacht "as soon as possible" after the notice of challenge is issued. Two years later, Golden Gate, which has built a 90-foot trimaran that has undergone three sea trials, has not provided the registration, Societe Nautique claims. At a hearing in July, Golden Gate argued that it intends to dismantle the boat it has built, that it is building another boat, and that it is not required to provide the registration documents until after the defending champ picks a location. Last week, Judge Kornreich issued a court order saying that each side would have six hours to explain its interpretation of the phrase "as soon as possible" at an August 10 hearing. Oh joy.
• Third: Golden Gate says it is building a new boat because of a last-minute rule change dealing with moveable ballast and powered winches. Societe Nautique's boat, which is being constructed under top-secret conditions on Lake Geneva, uses powered winches to raise and lower its sails. Golden Gate sought to have its rival held in contempt for effecting this rule change after Golden Gate had already built a manual-winch boat, but Judge Kornreich wasn't having it. "Unfortunately for Golden Gate, there is nothing in the deed that would disallow either the design change or the boat design apparently being used by [Societe Nautique]," she wrote. "To the contrary, the deed gives the defender this very advantage."
• Fourth: We're not the only ones amazed that what was originally conceived as a friendly boat race between nations has turned into the sporting world's version of "Kramer vs. Kramer." "Golden Gate's arguments based on sportsmanship and fairness are equally unavailing, as well as ironic in light of both parties' displayed lack of adherence to the deed's condition that the America's Cup race be a 'perpetual Challenge Cup for friendly competition,'" Judge Kornreich wrote in her order. To which we say: Amen.
SNG is represented by Barry Ostrager at Simpson, Thacher & Bartlett. James Kearney of Latham & Watkins represents Golden Gate.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
