I'd like my $748,000 now please!

UPDATE

Nigel:  I was checking out your John Kocinski website and saw that you have a section on his lawsuit against Bell Helmets, Inc.  and thought I might give you and update on the status of that suit.  My name is Kenneth Huston and I was Scott McEwen's partner in the lawfirm (Huston & McEwen) which represented John in the lawsuit.  We prevailed in the suit and obtained a $1.6 million verdict after a jury trial of approximately three weeks.  The judgment was affirmed after Bell Helmets filed an appeal.  However, as of this date we have been unable to collect anything on the verdict, as Bell Helmets, an Italian corporation, has filed bankruptcy in Italy.  We have a law firm in Italy attempting to collect on the judgment, which is growing at the rate of 10% per year.

Nigel:  There is one thing I should mention - the entity that John had the sponsorship agreement with is not the same entity as the American company which goes under the Bell Helmets name.  The Italian corporation was using the Bell name under a licensing agreement, and the judgment is against the Italian corporation only, not the American company of the same name.  Ken Huston
 

John Kocinski versus Bell Helmets

Kocinski bought proceedings against Bell Helmets in 1998 (his helmet sponsor since 1993) for monies still owed to him by the company. Below is an account of the case from case records. Kocinski switched to Arai mid-98.

Portions of the John Kocinski versus Bell helmets lawsuit filings have been obtained by amasuperbike.com and they show an intriguing look inside the situation. Defendants are listed as Bell Motorcycles Europe, Bell Helmets Inc, International Sports Marketing (d.b.a. Matrix, Bell Helmets, Matrix Sports Group and Does II).

Essentially, Kocinski, through his Nevada Corporation, John Kocinski Inc., is suing Bell Helmets Europe s.r.l. (which does business in America as Bell Helmets) in six causes of action or complaints. They include several charges of failure to pay Kocinski's agreed upon race fees (Including $175,000 in 1996, $75,000 in 1997), failure to pay royalties from products sold, and failure to pay agreed upon bonuses and fees. Other causes of action on the complaint, filed by Kocinski in Southern California by his attorney, charge Bell with "Fraud", "Accounting", and "Intentional Interference with Prospective Economic Advantage".

In layman terms, the gist of the suit filed by Kocinski and his attorney is this: they allege that over a period of years, Bell Helmets failed to pay Kocinski what Kocinski and his attorney consider to be $748,000 in fees, bonuses and royalties; and also that Bell apparently made several promises to pay Kocinski, so he continued to wear their product and did not get another helmet deal, and in doing so lost income. Kocinski has worn a Bell helmet since the mid-1990s after switching from his previous helmet sponsor, Shoei. He wore a Bell helmet until the end of the 1997 WSB season, and has now switched to Arai helmets. Also in the suit is a charge, the second cause of action, which accuses Bell Helmets of "Negligence" goes on to say that because of a rattling and fogging Bell Helmet "visor", Kocinski was forced to pit during the 1997 Suzuka eight hour and because of that stop, he lost the race, and lost income and bonuses, including a $5000 Castrol bonus.

According to Kocinski's attorney, Scott McEwen, the legal wrangling between Kocinski and Bell helmets dates back to 1997, when they did not pay him for his contract after he won the World Superbike championship. "All along they have refused to pay him what they very clearly owe him," McEwen stated last week. "The only time they have made an offer to pay is when they made a settlement offer to Kocinski. They offered to pay him $450,000 instead of the $750,000 they owe him. And that came with a binding agreement that he sign up for two more years with Bell at less money than they were supposed to be paying him last year." McEwen stated that the last time Kocinski was paid by Bell was in 1996, when they paid him $300,000.
"This is scheduled for trial on January third," McEwen stated. "Beyond that, this matter is the subject of a major appellate decision, the discovery issues in this might possibly go down in the annals of the California legal code on November 15."
McEwen went on to say that the discovery issue deals with the fact that Bell helmets Italy does business in California, has business partners in California, but so far, according to him any way, they feel they don't have to live under the laws of California. "It's a reflection of a larger issue in this country. You get these businesses that set up shop under off-shore corporations and then when it comes time for them to act as they said they would in a contract, they just refuse to."
John Kocinski did everything he said he would in their contract, according to his attorney, "And Bell helmets has simply refused to pay him what he is due. You hear a lot about "scorched earth" in the legal world, and that's when someone does something really bad, beyond every day behavior. Bell helmets did that when they tried to serve John with papers at Imola a few weeks back, at the racetrack, in the pits. John's job is at 200mph, and he needs to prepare himself to do that. Them trying to serve him there was unbelievable."
Kocinski was deposed for almost eight hours on November 3, 1998 by the defendants. We do not yet have a copy of that deposition.

Little information is available from the other side in this matter: Daniel Rodman, Bell's attorney, stated last week when asked for comment on this case, and asked specifically if it was safe to assume that Bell feels they do not owe Kocinski this money: "Because there is pending litigation in this matter I have no comment."

Kocinski's Bell helmets contract is included in the file obtained by amasuperbike.com. The contract covers the period of December 1995 to November 30 1997. Among other items in the agreement is the financial payment agreement, which pays Kocinski a base fee of $250,000 for the 1996 race season and $300,000 for the 1997 season. It also paid Kocinski $50,000 for a championship base increase in either the WSC or GP series, if he won the championship the season before (Kocinski won the WSC in 1997). Moreover, it paid Kocinski a bonus of $100,000 if he won the world championship, and race win/podium bonuses of between $10,000 for first and $2500 for third place in any GP or WSC race.

He also was supposed to get 5% of any sales of any John Kocinski replica helmet sales, the minimum of which was spelled out in the contract: $100,000 a season. This means that Kocinski helmet contract for 1997, the season he won the World Superbike championship, was supposed to pay him at least a half a million dollars in fees and bonuses. Kocinski's contract also states that he would give Bell helmets two public appearances free of charge, provided that they were near a racetrack, but if Bell wanted more beyond those two, they were to pay him a fee of $5000 for each appearance, plus pay the travel expenses of Kocinski and one "Toti La Torre" including First Class airfare for both "when airfare is required". The contract paid Kocinski if he were injured or killed within the contract period. Moreover, under section 22.5, "Governing Law" the contract plainly states the agreement "shall be construed in accordance with the laws of the State of California, USA ... and that if legal action is necessary to enforce the terms of the agreement that California Superior Court, Orange County ... shall be the sole venue and jurisdiction  for the bringing of such action". A stipulation in the file allowing Kocinski to be the agent/employee of JKI to carry out any contractual obligations with Bell is signed by John Kocinski and Gueseppi Ross, President of Bell Helmets Europe. The contract though, between Bell and Kocinski, the file copy anyway, seems to be unsigned.

Bell Sports, the contact racers use for Bell Helmets in this country, was phoned and a PR person asked for comment on this case and how it pertains to Bell Sports and or Bell Helmets USA, via voice mail. The contact has not yet replied.

Dean Adams