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Discussion in 'News' started by Young, Apr 14, 2008.
I just posted at autobloggreen:
As a trial attorney that handles infighting between ex-partners in these matters, it isn't hard to see the writing on the wall. Nobody is going to win this battle, especially in the PR realm.
Fisker obviously needs the technology and has much to gain from Tesla. Fisker could also develop the E-Rev technology and then help Tesla out with Whitestar. This thing needs to die, and quickly.
But I know in reality this won't happen, especially with those now steering the ship at Tesla. Even if Karma is killed by stealing all the intellectual property at Tesla, from a PR standpoint, it does not make me happy. It's a good design and product, that won't see the market.
How do can they tell his work was substandard? According to Tesla, that front grille on the Karma is Henrik on a good day!
Still, reaching for the lawyers is a time-honoured tradition amongst real auto manufacturers.
What's missing? Oh yes. Mass production.
From the NYT article:
"The Tesla lawsuit seeks to stop Mr. Fisker from using Tesla design documents, along with a return of the money from the contract and unspecified punitive damages."
I wish I had a better sense of what Tesla wants, aside from the return of the contract fee. (If this case goes on for a bit, TM will probably spend $875,000 on legal fees alone.) I'm finding it a bit difficult, however, to figure out what important information Fisker could have stolen from Tesla. The most sensitive parts of TM's work revolve around battery and motor design, both of which would seem to be peripheral to Fisker's design process. If Tesla disclosed that info, I wonder for what purpose.
Musk said something about Fisker giving them "substandard" work. How do you prove that? It could well be that the Tesla's parameters forced Fisker to make design compromises that it didn't need in its own project.
Brent, it seems to me that the fraud and breech-of-contract parts of the suit are more important than the trade secrets. The breech-of-contract is certainly the easy sell among the claims...these guys took the money for design work and then used that work themselves on a competing product? Sounds like a slam-dunk to me. Of course I haven't seen the contract in question.
As for how you establish "substandard work," I'll just say that subjectivity is easily cured with polling. Or with a jury. Other designers brought in as expert witnesses may be instrumental here as well. I'm more interested in the similarity...the Karma had better have a lot in common with Fisker's Whitestar (while still being a significantly more appealing design to most people) if the charge is to stick. If a jury looks at the Whitestar design next to the Karma and they all say "yeah, those look the same except this one is uglier" then Tesla is in a good position. If they like the Whitestar version better, I still don't think it's a killer...the worst for Tesla would be if the designs just don't look at all alike.
And DDB, what about licensing? This has out-of-court settlement written all over it to me. After all, Fisker just used the publicity from the Karma concept to land a big investment from Kleiner Perkins Caufield Byers, so they've got money now...if the suit turns out to have legs, why can't the parties just announce an end to the suit and a strategic partnership involving licensing of Tesla's core tech? And a refund of the design contract payment, of course...
Fisker counter sues
Saw this article over on Cnet some interesting little tidbits in the story.
Fisker to counterfile against Tesla Motors | Green Tech - CNET News.com
Apparently the spec for whitestar started creeping when Elon become CEO. This seems to be a pattern with him.
The article says:
I think they're saying Elon took over as the point of contact, not that he became CEO.
Anyone know the purpose of trying to move the case from San Mateo (Northern California) to Orange County (SoCal)?
Related thread here: http://www.teslamotorsclub.com/news-articles-events/1090-rumor-karma-originally-fiskers-design-whitestar.html
IMO that article was terribly written. What counterclaim on what grounds? If I were the attorney on Fisker's end I'd certainly counterclaim with the standard breach of contract. I'd use a bunch of random affirmative defenses (failure to mitigate damages) to fire back.
It's typical to fire back as to not be on the defensive. In these types of battles, the only ones to prevail are the attorneys assuming the case is outsourced to private attorneys and are not corporate counsel.
Regarding that article, it didn't say squat. Fisker was at least bright of enough to stay quiet about substantive issues....but barely.
As I have commented elsewhere, I think these lawsuits are a shame. I don't think they are good for either company (especially in their fragile, young positions) and I don't think they are good at all for the whole EV field.
I certainly understand Fisker's desire to protect his reputation (heck, a lot of what I have said publicly has been for the same reason), but lawyers at 10 paces is a loosing game, unless you are one of the lawyers.
I hope Musk and Fisker do the sensible thing and settle their differences (quickly) in a way that allows both to save face.
I completely agree; these suits are not going to help the industry. But I do not see a joint venture or compromise arising anytime soon. I suspect you're going to be subpoenaed shortly for a deposition... I think it'd be worth hiring your own counsel for that one. But all parties are going to be very interested in what you have to say. What fun for you
Siry had a twitter a little while ago about giving a deposition:
Don't know which law suit that was for. Bleh.. this stuff is depressing. Tesla really needs some good news soon.
Fisker seeks arbitration in suit with Tesla - AutoWeek Magazine
Sparks fly: Fisker sues Tesla back - Autoblog
Fisker Automotive files legal counterattack in Tesla suit | Green Tech - CNET News.com
Seems things are getting uglier:
Well, isn't this an interesting wrinkle. I'm especially interested in the part that says:
"Tesla and its investor [sic] would be better served if Tesla devoted its money and time to resolving its own technical and management issues".
Ouch! Seems like Elon & Co. may get a run for their money on this one...
Tesla Motors - think
"In keeping with a fast growing technology company, all free cash flow is plowed back into R&D to drive down the costs and bring the follow on products to market as fast as possible. When someone buys the Tesla Roadster sports car, they are actually helping pay for development of the low cost family car."
.....plus undisclosed lawyers' fees and out-of-court-settlements.
Is it me or has Clean Tech lost its way and got rather grubby?
Bandwagons tend to do that...
Well we now know that the title of this thread is incorrect. Fisker didn't really counter sue, but rather filed a motion to get Tesla's case moved to arbitration. It now looks as if Fisker succeeded with their motion.
Tesla Motors-Fisker Auto case to go to arbitration | Green Tech - CNET News.com
Edit: A couple threads were merged here. The title of the thread at the time this post was made was "Fisker counter sues".
Arbitration clauses are very common and are often thought to be a quicker means to resolution as well as cheaper. In this case, the clause stuck. That was poor planning on Tesla's part, which apparently ignored, or neglected to read the contract which had a mandatory arbitration clause.
The good news here is that arbitration is binding and it's a much quicker resolution.
Tesla's lawsuit against Fisker goes to arbitration - AutoblogGreen
So if Tesla is unhappy with the outcome of the arbitration, they have no further recourse? Rediculous that they didn't folow the terms of their own contract.