Ernesto uses legal tactics in America's Cup saga

Ernesto Bertarelli (left) with skipper Brad Butterworth. Bertarelli ©

Ernesto Bertarelli owns Alinghi, the Swiss team that holds the America’s Cup. He said last summer that he would win a court battle with the American Oracle team over the format of the next cup because 'we have the best lawyers.' He was wrong.

And now, after being ordered by a judge to honor the Oracle’s challenge for a race between giant multihulls, Bertarelli’s response has been to hire new (and presumably better) lawyers. And he seems to be reneging on his earlier promise not to appeal the decision by the court that since 1887 has been the trustee of the Deed of Gift that governs cup competition.

To many observers it looks as if Bertarelli has decided to build a 90-foot catamaran or trimaran to meet Oracle, which represents San Francisco’s Golden Gate Yacht Club. His latest legal maneuvers may not be aimed at winning in court but in delaying the race as long as possible, giving him time to catch up with Oracle’s designers who have been working on multihull plans for months.

Meanwhile, other teams that would have raced in 2009 are mothballing their bases or shutting down. Alinghi and Oracle are bankrolled by billionaires, but it will be nearly impossible for the other dozen to raise the $100-$200 million in sponsorship money needed for an America’s Cup campaign without being able to tell the sponsors when and where it will be held.

Alinghi represents the Societe Nautique de Geneve. Bertrelli’s latest attempt to delay honoring the GGYC challenge is a letter from his new lawyers asking Judge Herman Cahn of the New York State Supreme Court to set next May as the date for facing the Oracle challenge, or 10 months longer than Alinghi is supposed to get under the Deed of Gift.

SNG’s lawyers also asked that the judge’s settlement order for the GGYC lawsuit include the phrase, 'should GGYC ultimately be upheld to be the rightful challenger. . .' which is breathtakingly presumptuous and telling.

It implies A. That the New York Supreme Court doesn’t have the authority to interpret the deed for which it was specifically named the trustee 120 years ago, and B. That SNG doesn’t recognize the New York Supreme Court’s authority and will ask a higher court to overturn Judge Cahn’s ruling.

That’s going to be a tough argument to sustain, because a few weeks ago SNG was arguing that only Judge Cahn had the power to recognize the Spanish yacht club it set up as its tame challenger of record for the event Alinghi originally planned for Valencia, Spain, in 2009.

But if nothing else, it has delayed the announcement of a final settlement order by Judge Cahn until at least mid-January, and any delay works in Alinghi’s favor.

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