America's Cup- Urgency granted in closed Hearing

by Richard Gladwell on 15 Apr 2008 UPDATE:

Sail-World understands that the closed hearing mentioned below has been held and the expedited Appeal has been agreed, meaning the Hearing will take place in June. Sail-World also understands that SNG/Alinghi have been denied a Stay. It is however expected that SNG/Alinghi will take this matter to the full Appellate Court and attempt to get a Stay in place before the Hearing.


The following is an extract from the pre-argument statement in the Appeal filed by Societe Nautique de Geneve in the New York Supreme Court earlier today.

The first four clauses are the recitals of the parties (and addresses for service etc). The named parties are Societe Nautique de Geneve, Golden Gate YC and Club Nautico Espanol de Vela.


5. This appeal is taken from the Decision and Orders of Hon. Herman Cahn, J.S.C.
of the Supreme Court of the State of New York, County of New York, dated March 17, 2008, which was entered in the office of the Clerk of the Supreme Court of the County of New York on March 18, 2008 and notice of entry of which was served by hand delivery on March 27, 2008.

6. This is an action for breach of fiduciary duty and breach of the terms of the Deed of Gift governing the America’s Cup. On July 20, 2007, Plaintiff-Appellee GGYC filed a complaint alleging that Defendant-Appellant SNG violated the terms of the Deed of Gift that governs the America’ s Cup by accepting a challenge from CNEV and seeking a declaratory judgment that CNEV’s challenge for the Cup is void and GGYC’s challenge is valid. It further sought an injunction directing SNG to reject CNEV’ s challenge and not promulgate rules pursuant to the protocol SNG and CNEV drafted, and further directing SNG to accept GGYC’s challenge and draft a protocol with that organization.

7. On November 27, 2007 the Supreme Court, in a memorandum decision, granted Plaintiff- Appellee GGYC’s Cross-Motion for Summary Judgment, denied in part Defendant- Appellant SNG’s Motion to Dismiss and for Summary Judgment, denied CNEV’s Motion for Summary Judgment and to Dismiss GGYC’s claims, declared CNEV’s challenge to be invalid and CNEV not to be a valid Challenger of Record pursuant to the Deed of Gift, and declared GGYC’s challenge to be valid and GGYC to be the Challenger of Record. On March 17, 2008, the Court denied SNG’s motion for an order declaring GGYC’s Notice of Challenge and Certificate by Golden Gate Yacht Club to be in non-compliance with the Deed of Gift. The November 27, 2007 memorandum decision was settled in the March 17, 2008 orders. A copy of the March 17, 2008 Orders and Decision is attached hereto as Exhibit A. A copy of the November 27, 2007 memorandum decision is attached hereto as Exhibit B.

8. The grounds for reversal are errors of fact and law.

9. The following proceedings are related to this action: Team New Zealand Limited v. Société Nautique de Genève, et al, Index No. 600662/2008 (N.Y. Sup. Ct.) (Cahn, J.); Team New Zealand Limited v. Société Nautique de Genève, et al, No. 08-C V-2228 (S.D.N.Y.). The complaints were filed on March 6, 2008. Defendants have not yet served responsive pleadings.

Dated: New York, New York
April 14, 2008

Sail-World understands that the papers were initially rejected by the New York Supreme Court on a technicality, in that they were appealing a Decision which had not been formally promulgated through an Order.

Sail-World also understands that there will be a private closed hearing tomorrow conducted by either a single Judge or an administrator to decide whether to grant a motion to expedite the Hearing onto the June docket, or to let matters run their course.

If the Hearing is expedited it is expected that the matter will take 6-12 weeks. If it is not expedited then the process could take up to two years.

The issues that can be determined on Appeal are only the interpretation of the Deed of Gift against the record of the trial Court. There is no option to introduce new material or facts, or completely re-argue the matter.

Societe Nautique de Geneve is permitted only one level of Appeal by right and a second Appeal only by leave of the Court, which may be denied.

Justice Herman Cahn is yet to rule on the matter raised by Societe Nautique de Geneve, which was that of dates for the 33rd America's Cup. The Challenger of Record, Golden Gate YC is entitled to set the dates for the Match and had initially specified 4th July 2008, later allowing a date of October 2008. However SNG/Alinghi argued that the Court should specify a date of May 2009 or July 2009.

It is not known why the defender chose this moment to lodge an Appeal, when a more logical time would have surely been after Justice Herman Cahn had delivered his Decision and signed the Order.

UPDATE:

Sail-World understands that the closed hearing mentioned below has been held and the expedited Appeal has been agreed to, and that SNG/Alinghi has been denied a Stay. It is however expected that SNG/Alinghi will take this matter to the full Appellate Court and attempt to get a Stay in place before the Hearing.