Tholke v. Sailing Vessel Energy Team AC45, The

Filing 17

RESPONSE to re 15 Order by Todd Tholke. (Attachments: # 1 Declaration of John D. Edgcomb in Support of Response to Court's Order)(Einhorn, Michael) (Filed on 10/5/2012)

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JOHN D. EDGCOMB (SBN 112275)
ADAM P. BAAS (SBN 220464)
MICHAEL EINHORN (SBN 252462)
Edgcomb Law Group, P.C.

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One Post Street, Suite 2100

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Telephone: [phone]

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j [e-mail]

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Attorneys for Plaintiff
TODD B. THOLKE

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San Francisco, Californa 94104
Facsimile: [phone]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TODD THOLKE, an individual,

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DECLARATION OF JOHN D.
EDGCOMB IN SUPPORT OF
RESPONSE TO COURT'S ORDER

Plaintiff,

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Civ. No. 12-5162 (RS)

v.

THE SAILING VESSEL ENERGY TEAM
AC45, her sails, tackle, equipment, and
furnishings,
Defendant.

Judge: Hon. Richard Seeborg
Complaint Filed: October 5, 2012

16 I, John D. Edgcomb, declare as follows:
17 1. I am an attorney in the law firm of

18 herein for plaintiff

Edgcomb Law Group, P.C., the attorneys ofrecord

Todd Tholke. The matters set forth herein are of

my own personal

19 knowledge, and, if called upon to do so, I could and would competently testify thereto.

20 2. Upon information and belief, Andy Hindley (Hindley) is the Chief Operating Officer
21 of

the America's Cup Race Management ("ACRM") organization, which is in charge of

putting

22 on the America's Cup World Series races cunently underway in San Francisco Bay. Attached
23 hereto as Exhibit 1 is a true and conect copy of

the September 17,2010 press release

24 announcing Hindley's appointment as Chief Operating Officer of ACRM. As such, he is in
25 charge oflogistics for the America's Cup World Series races now underway.
26 3. I was informed by my client, plaintiff

Todd Tholke ("Tholke"), that Hindley called

27 him earlier this week and advised him that ifhe was contemplating taking any legal action as a

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1

DECLARATION OF JOHN D. EDGCOMB iso RESPONSE TO COURT'S ORDER

Civ. No. 12-5162 (RS)

1 result of

the events of September 30 (as now detailed in the Complaint In Rem), Tholke should

2 contact him (Hindley). Hindley gave Tholke his cell phone number.

3 4. On Thursday, October 4, 2012, after this Court issued orders authorizing the an-est of

the World Series races, and the Court Clerk

4 the Energy Team AC45 after completion of

5 authorized the u.s. Marshal to an-est the Energy Team AC45, I called Hindley on his cell phone.
6 I advised Hindley of

my representation of

Tholke, of

the fiing of

the Complaint In Rem, and of

7 the Court's issuance of the In Rem An-est Warrant. I requested the provision of substitute
8 security in order to allow for release of the vessel to avoid the an-est, and asked that Hindley put

9 the Energy Team on notice, tellng Hindley I had not spoken with them. I had no contact
10 information for the owners of

the Energy Team AC45.

11 5. Hindley informed me that he understood the situation, that ACRM had a maritime

12 attorney on staff, and that I would hear back from someone to address the issue. He (Hindley)

13 asked that I text my contact information to his cell phone number so that he (Hindley) could

14 forward that contact information to the appropriate persons. I texted that information to Hindley
15 at 5:15 p.m. on October 4,2012. However, I received no response from Hindley or anyone else

16 later that day, that night, or into this morning.

17 6. Hearing no response, I made further contact with Hindley this mornng, first texting

18 him twice. Getting no response, I called Hindley on his cell phone at approximately noon. I
19 reiterated information regarding the filing of the Complaint In Rem and the pending In Rem

the Energy

20 AHest Wan-ant and urgently requested contact information regarding the owners of

21 Team AC45. Hindley declined to provide said contact information, but indicated that he would
22 notifY the Energy Team AC45 owners that they should contact me immediately.

the Energy Team AC45, Hindley and I

23 7. Upon not hearing from the French owners of

24 then exchanged further texts wherein Hindley refused to provide contact information for the
25 owners of

the Energy Team AC45.

26 8. Attached hereto as Exhibit 2 are true and correct copies of

the series of

texts

27 exchanged between me and Hindley regarding the aforementioned matters.
28 9. I then asked my associate, Adam Baas ("Baas"), to go to Pier 30/32 where the Energy

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DECLARTION OF JOHN D. EDGCOMB iso RESPONSE TO COURT'S ORDER

Civ. No. 12-5162 (RS)

i team is assembled to paiiicipate in the sailing races and the Energy Boat AR45 is moored to seek

the pleadings and

2 direct contact with the Energy Team management and to deliver certain of

3 orders. Ispoke with Baas via telephone after he went to Pier 30/32. Baas told me the following:

4 a. He spoke with a security guard at the gate, explained his presence, and asked
5 to speak with someone from the Energy Teai. In response, Hindley emerged and had a

the

6 discussion with him (Baas), advising him that the Energy Team was advised of

7 Complaint in Rem and the impending an-est ofthe Energy Team AC45 on Sunday
8 afternoon. Hindley advised

that on Sunday, the sailboats would be removed from the

9 water as they returned from the final race in the afternoon, and over the course of time,

i 0 which could extend into Monday, each vessel would be disassembled and placed in
i i containers. Henley said it was his understanding that the French team did not want to
i 2 speak with us regarding this matter until they reached their French counsel as well as

i 3 obtained local counseL.
i 4 b. Another person from the ACRM team then appeared, Amish Ross ("Ross"),

15 who represented himself to be ACRM's General CounseL. Ross indicated that the Energy
time and language differences, but that they

16 Team was delayed in responding because of

i 7 were pursuing the matter with French counsel and expected to be retaining local

i 8 American maritime counsel soon. He (Baas) provided Ross with copies of some of the

19 relevant legal documents, including the Complaint in Rem, the In Rem An-est Wan-ant
20 and the Court's two orders to provide to the Energy Team representatives for their use in
2 i responding. Ross said he would deliver the documents to the energy Team. No one from

22 the Energy Team ever appeared at the gate despite Baas's request and Baas was not

23 permitted inside the secured area.
24
25 I declare under penalty of perjury under the laws of the State of California that the foregoing is

26 true and con-ect.

27 / / /
28 / / /
3

DECLARTION OF JOHN D. EDGCOMB iso RESPONSE TO COURT'S ORDER

Civ. No. 12-5162 (RS)

1 This declaration was executed on October 5, 2012 in San Francisco, California.

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DECLARTION OF JOHN D. EDGCOMB iso RESPONSE TO COURT'S ORDER

Civ. No. 12-5162 (RS)

EXHIBIT 1

Mu

and

a

Cuplnfo Home I America's Cup 2013 I Defender &. Challengers I Schedule I America's Cup World Series I Feature
Articles I Previous America's Cup Events I CupStats

2013

Cup

Named COO: Press Release
Valencia, September 17, 2010

America's Cup experience and business acumen are the primary attributes of
the new 34th America's Cup Regatta Director, lain Murray.

As Regatta Director, Murray (52, Sydney, Australia) heads up the new
America's Cup Race Management (ACRM), holding the dual role of CEO of the
independent organization.

This is the first time in the event's 159-year history that the defender has
divested management of the competition into the hands of a neutral body, a
central part of its vision to move the America's Cup into the future.
ACRM will have responsibility over a wide range of topics including budget,
management of the new AC72 and AC45 classes, the Youth America's Cup

(slated for 2012), the International Jury, race committee, umpires and

measurement committee.

lain Murray
Photo: @2010 Chuck Bradley

ACRIVI also will oversee the operation of a meteorological and oceanographic
data service, the establishment and management of the America's Cup

Village, and infrastructure at all America's Cup World Series (ACWS) venues.
With the 34th Match slated for 2013, one of ACRM's immediate priorities is getting the ACWS up and
running. Three regattas are planned for next year beginning in June or July, and ACRM is responsible for
selecting the venues and managing the logistics from event to event.

Murray, a figurehead in America's Cup syndicates from 1983 to 1995, has held a vision of an independent

management body for the past 20 years.
The sailor and designei' in Murray make him excited about the new high-performance AC72 and AC45
catamarans introduced for the competition.

"I think the technology we saw in the 33rd America's Cup makes it hard to go backwards. The trick we'll
have is to marry the commercial demands of modern sailing with the principles of the America's Cup,"
Murray said.
"It's hard not to be impressed by the commitment BMW ORACLE Racing, Russell Coutts and Larry

Ellison

have made to fix this thing," said Murray. "This is very dear to my heart. I'd move mountains to be
involved."
Joining Murray in ACRM as the Chief Operating Officer is Andy Hindley, former

Race Manager of the Volvo Ocean Race.
Hindley (43, Hampshire, UK) managed the 2001-02 and 05-06 editions of the
Volvo Ocean Race before becoming in 2008 the Race and Technical Director of
Powerboat Pi Management, the offshore monohull powerboat championship,

for two years.

Hindley's personal racing background is based largely in round-the-world
races. Hindley, who holds a degree in physics, has a strong background in

logistics from his days with the Volvo Ocean Race and P1 Powerboats.
Both events are travelling road shows that place heavy emphasis on public

race villages in multiple venues.
"Getting the ACRM team arranged as quickly as possible is going to be one of
the biggest goals," Hindley said. "Logistics, catering, entertainment, public
events and sport are all under the remit of ACRM, and we can't let any of

them slip. They're all inter-linked and what will create the unique experience
of coming to a World Series regatta."

Andy Hindley
Photo: @2010
Javier Laguna Salinas

lain AlVl
Regatta Director and CEO,
America's Cup Race Management

America's Cup

Hometown: Sydney, Australia

Hometown: CL

Chief Operatin,

Date of birth: April 14, 1958

Date of bi rth: .

Wife: Alex

Wife: Julie

Children: Eliza, Lucinda, Imogen
lain Murray began sailing on Middle Harbor,
Sydney, as a 9-year-old in the Flying Ant class.

Andy Hindley t
and advanced
late teens he v
tonners during

His greatest success came in Sydney's iconic 18ft

skiff class, in which he designed, built and sailed
Color 7 to win a record six consecutive

He has twice s

championships from 1977 to 1982. The

In the 1992-9:

association between Murray and Australia's

crewed aboard

Channel 7 carries on today, 33 years later.

Pete Goss, piai
way" race arOL

The success in the 1S' skiffs led Syd Fischer,

Australia's most regular and least successful
challenger for the America's Cup to select him as

Four years latE

helmsman of his 1983 challenger Advance.

Children.Oncl

Challenge, thì5

overalL.

Murray joined with Kevin Parry/s Kookaburra
syndicate for Australia's defense of the Cup in
1987. Kookaburra earned the right to defend the

Cup after a cantankerous defense series, but was

Goss as navigc

Philips, the rae

vanquished in the 26th Cup Match by Dennis
Conner's Stars & Stripes.

That series off Perth, Western Australia, is widely
regarded as the one of the best America's Cup
regattas due to its openness and fantastic sailing
conditions.

Following that

broke apart in
December 200

Hindley has br
skippered with
the Round Brit
completed the
60-foot trimar¡

Murray also led the Spirit of Australia Challenge
for the 1992 Challenger Series, which failed to
advance out of round robin racing.

His ties to the
Fastnet Race, i
Australian Johi

Murray has enjoyed a tremendous career as an
offshore sailor, winning many of the world's

50. Bertrand ~

historic triump

classic events. He's logged 17 Sydney-Hobart

In 2001 Hindle

Races, including two overall victories and four

Management U

line honors wins. He also was on the winning
Australian team at the last Champagne fVlumm
Admiral/s Cup, and took down Paul Cayard to win
the 1988 match racing world championship.

globe-girdling r
2008 that inclu

As a one-design sailor, Murray ranks his Etchells
World Championship in 1984 as one of his most

and Operations

satisfying victories. He also placed third at the

monohull powe

races.
From 2008 to =

Management, r

2005 Etchells Worlds.
Hindley holds ê

In 2008 Murray competed in the Olympic Regatta
at the age of 50 when he represented Australia in
the Star Class. Besides an illustrious racing

electronics fror

career, Murray has achieved great success as a

unique take on

real estate developer and businessman. His
company, Murlan, is a multi-disciplined property
development firm that has undertaken a number

"The next cup i

of unique and diverse projects over the years.

commitment ar

- Institute of S

focus in astra ê

sport," Hindley

made and deli\¡

In recognition for his achievements and
meritorious service to sport and community,
Murray was presented in 1992 the Order of
Australia, AM, an order of chivalry established by

Elizabeth II, Queen of Australia, in 1975.
Murray has contributed design input for the
public sector on projects such as child care,
retirement and marine rescue centers. His real

estate development company manages several
enterprises in Sydney.

He also consulted with noted Australian ai-chitect
Wayne Barda on the design of the spectacular
Hamilton Island Yacht Club.
Beyond the sailing accolades and business
success, Murray says his greatest achievement is

his close-knit family: "Watching my children
laugh gives me the greatest pleasure in life."

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EXHIBIT 2