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Panoz vs. Nissan Lawsuit Overshadows DeltaWing Road Car Plan

Case could have wide-reaching implications for both brands.

SEBRING, Florida -- Dr. Donald Panoz was once described in print as a "portly redheaded entrepreneur," but a recent weight loss erased all signs of "portly," and age has replaced most of the red with silver. The slimming-down, he says, was done on purpose: He turned 80 in February, and figured it was time to start thinking of his health.

Up to a point. He refuses to give up his Silk Cut cigarettes, a vice so dear that many have long suspected he insists on traveling by private jet simply so he can chain-smoke. It may not sound too surprising that Panoz smokes, unless you realize that he made most of his hundreds and hundreds of millions off of the nicotine patch, which he and a team developed, then marketed at a company he founded, Elan Corporation.

This would make Panoz intolerable, unless you know that he too sees the irony. Tar and nicotine, he says, may be all that is holding him together.

At a time in his life when most men would be planning the next early-bird buffet while dialing up the grandkids on his Jitterbug, Panoz wills himself to stay busy. Although he sold his interests in the American Le Mans Series he founded to NASCAR and the Grand-Am Series, reportedly for somewhere around $8 million, he continues to be invested deeply in motorsports.

Now, Panoz is involved in a complicated lawsuit that could seriously affect Nissan's motorsports program, and he continues to fund his DeltaWing Technology Group, which supports the DeltaWing race car, and as of last Friday (March 20), is committed to building road-going versions of the DeltaWing (pictured at top), an announcement made less than 24 hours before the race car took to the track at Sebring International Raceway for the Mobil 1 Twelve Hours of Sebring endurance race.

To understand how important these recent developments are, we have to set the stage.

About six years ago, the Verizon IndyCar Series realized that its then-current, Dallara-built car was growing long in the tooth, and put out a call for a new model. Six designers answered the call.

In February 2010, a completely unexpected exhibit appeared during the press preview for the Chicago Auto Show: A bizarre mockup of a car called the DeltaWing, which had an impossibly narrow front end -- its two front tires were only four inches wide -- and wide hips, which would hold a small four-cylinder engine. It was accompanied by a crude animation of two DeltaWing-looking cars driving around an animated racetrack.

The concept was greeted less with praise for its chance-taking design, than with disbelief, and curiosity as to when Allen Funt and the rest of whatever was left of the "Candid Camera" crew would pop out of the display. But it was really DeltaWing throwing its pointy hat into the ring.

In rather uncomfortable attendance was Chip Ganassi, who had funded the effort so far for Ben Bowlby, an engineer and designer who worked for Ganassi, and whose idea the DeltaWing was. Even IndyCar founder Tony George showed up to see what the fuss was about. Bowlby patiently -- and Ganassi less patiently -- explained the idea behind the DeltaWing, which has since become its mantra: Half the weight, half the fuel required, half the horsepower, but the same speed as the Indy car. A defensive Ganassi acted as though he had worn the wrong clothes to the party.

Six months later, to no one's surprise, IndyCar's ICONIC committee (Innovative, Open-Wheel, New, Industry-Relevant, Cost-Effective) and IndyCar's then-CEO Randy Bernard picked a far more conventional open-wheel design by Dallara, in no small part because it was the safest choice. Plus, at the time, IndyCar was on a big "Made-in-Indiana" kick, and Dallara agreed to build a factory in Indianapolis, and generously discount the car to Indiana-based teams.

Bernard later told AUTOMOBILE that he appreciated the DeltaWing, but the fact that it didn't actually exist, and the technology had never been tried, meant that "It seemed like the Dallara was the best choice."

This should have meant the DeltaWing's death. But Panoz was intrigued. Using his connections with the ACO, the sanctioning body for the 24 Hours of Le Mans, the DeltaWing resurfaced at the 2011 Le Mans enduro, where it was announced that in 2012 it would get the coveted "Garage 56" slot reserved for experimental cars, with the backing of Michelin, which would supply tires. About all that had been done to that point was revise the IndyCar mockup, shorten it a bit and stick head- and taillights on it. Now, they had to build it.

Since Ganassi didn't compete in the American Le Mans Series, it was up to Panoz to pay most of the tab. The car began construction at Dan Gurney's All-American Racers in California. At that point, only Michelin had signed on -- no one else would take a chance on the DeltaWing, meaning everything that went into it had to be purchased and re-purposed by the team. A desperate search for an OEM partner to supply the engine was launched. Chevrolet said no. Mazda said no.

Nissan's European division eventually showed mild interest. At the DeltaWing's first test, at Buttonwillow in the California desert in March, 2010, Nissan brought a few engines, a couple of drivers, and a handful of engineers. They were so concerned about the DeltaWing crashing on the first turn that they de-badged the engines, put all their employees in street clothes, and denied all involvement.

AUTOMOBILE was at the test: The car ran and handled. It was a remarkable week, with an exhausted crew, staying at the Motel 6 to save money, working 20-hour days. It felt a little like it must have at Kitty Hawk when the Wright brothers said oh yes, it can be done.

We wondered aloud the last time such a dramatically different design had presented itself at a venue as large as Le Mans. None of us could think of an answer. The DeltaWing did exactly what Bowlby, an unassuming, disarmingly honest Brit, said it would do, and he was the only one not surprised.

After the test, we asked Bowlby if he envisioned large fleets of DeltaWings competing at race tracks. "Not really," he said. "I just wanted to show there are different ways to do things. I'm hoping that the DeltaWing might encourage other designers to climb outside the box."

This was the first sign of a conflict between Bowlby and Panoz, because Panoz, a businessman, did envision fleets of DeltaWings, all coming from his Braselton, Georgia, race shop, each representing an eventual profit after repaying the investment that got the car to Buttonwillow and Le Mans.

There was precedent, except about the profitable part. In 1989, Danny Panoz, then 27, began a car-building business that would crank out (very) low-volume Panoz roadsters and sports cars, an effort funded by father Don. Then Don began a project with DaimlerChrysler to import Smart cars and fit them with electric engines. In a Fortune story from 2001, Danny Panoz, Don's then-39-year-old son who had been building Ford-powered roadsters and sports cars for a decade, claimed that he had 50 dealers nationwide selling the $80,000 Esperante sports car, but that didn't work out as planned.

Danny Panoz had no interest in racing, but Don thought that to give Danny's cars some credentials, they should start, so he did. But long after Danny wandered away from the car-building business, frustrated with government regulations, Don kept racing. He is still racing the DeltaWing. But without Ben Bowlby.

Which brings us to the lawsuit.

Once Nissan realized the DeltaWing worked, it began a loud and rigorous campaign to associate itself with the project, and with the car's debut at the 2012 24 Hours of Le Mans. They brought hundreds of journalists to Le Mans, and immediately the DeltaWing became the belle of the ball, even though it wasn't competing officially, as it was experimental. Publicity was enormous. Top Gear showed up with its own jokey replica of the car, which was parked outside the barracks that Nissan maintained at the track.

That the car made it past the six-hour mark was a bit of a shock, cranking out presentable lap times, despite a gearbox problem which has always been its Achilles heel. But that it was a crash caused by a Toyota LMP1 car, and not a mechanical failure, that eliminated the DeltaWing from the race just past the six-hour mark was an even bigger surprise. The car was crippled on the track, and as such, Le Mans rules say that only the driver can try to repair it. And Satoshi Motoyama did, using tools passed through the fence by his mechanics, before finally giving up after more than 90 minutes.

It was a plucky performance from start to finish by the ugly duckling, an underdog embraced by people well outside the motorsports community. The DeltaWing owned Le Mans, and Nissan, after years of comparatively minor global motorsports participation since leaving Le Mans in 1999, was back in a big way, launching the career of Darren Cox, at the time general manager of Nissan Europe.

"This is not the finish line, but just the start for DeltaWing Racing Cars -- we're looking forward to opportunities to further demonstrate what the future of highly efficient motorsport could look like," said Don Panoz, in the official post-race press release.

"Everyone should celebrate the success that the Nissan DeltaWing has been and feel pride in the impact it will have as a test bed for future innovations both on the road and track," Cox said in the same release. Cox, riding the DeltaWing wave, was promptly named Nissan's global motorsports director.

No one expected what happened next.

As the night progressed at Le Mans, the poor DeltaWing sat behind a chain-link fence in the track's impound lot, and the crew popped the tops of more than a few beers. They were like soldiers who had just been told the war was over. In a sense, it was. All involved had worked non-stop. Bowlby hadn't had one day off in months. The Gurney crew was exhausted.

Only Panoz and Cox seemed at all interested in talking about the DeltaWing's future. For many of the crew, this was a one-and-done project, and they had very nearly re-invented the idea of what it meant to build a fast race car under the most strenuous of circumstances. The car performed as Bowlby hoped, but you got the feeling that even he had little interest in the DeltaWing's future. For him, this could be the end … for Panoz, just the beginning.

While Nissan certainly assisted in the late development of the DeltaWing, the huge white NISSAN painted on the sides of the matte-black race car arguably suggested more involvement than what occurred. In the end, the scramble for a suitable 300-horsepower, four-cylinder engine led to the team using a Ray Mallock Ltd.-sourced powerplant. At the time, RML fielded the Chevrolet World Touring Car Championship entries for Chevrolet of Europe. The engine that was used in the DeltaWing at Le Mans was startlingly similar to one of those Chevrolet Cruze racing engines, with some Nissan-supplied fuel injection parts from a Juke. Most people, and most media outlets, have continued to gloss over this fact.

This was not lost on Chevrolet, which had passed on the DeltaWing program, and at least one Chevrolet executive at Le Mans expressed his annoyance about the "Nissan" engine. Less than one month later, Chevrolet announced it was ending its eight-year factory sponsorship of the Mallock World Touring Car Championship team. We aren't implying a connection.

Panoz and Nissan agreed that the DeltaWing's next appearance would be at the 2012 Petit Le Mans, the Amercian Le Mans Series season finale. Panoz not only owned the DeltaWing, but also the Road Atlanta track that hosted the race. After a massive crash caused by an errant Porsche in practice, the car was repaired, qualified in the top 10, and finished an astounding fifth after running as high as third.

So what was next? Bowlby, in a "mission accomplished" mood after Petit, wasn't sure. "The question is," he said, "is this car a stepping stone to something else, or will it have a life of its own? Frankly, there's a lot of unfinished business. It can be a lot faster than it is."

For Panoz, the answer was clear: It would have a life of its own, especially if he was to go to the expense of creating a tub for the car that would be successfully crash-testable by sanctioning bodies -- the original DeltaWing, to save time, used a tub that had already been crash-tested as part of an aborted Aston-Martin project.

As for Bowlby, it was time to move on. Search the Nissan archives for "Bowlby" and his last mention with DeltaWing is in regard to the November 2012 Los Angeles Auto Show, where the car made an appearance.

But then Bowlby doesn't appear again until June 21, 2013, when now dubbed the "Director of Motorsport Innovation," shows up discussing the revolutionary Nissan ZEOD RC, which would make an appearance as the Garage 56 entry for the 2014 24 Hours of Le Mans as the first electric-powered racer there. It is lost on no one that the ZEOD RC looks a great deal like the DeltaWing. Nissan took pains to keep Bowlby out of the spotlight, especially a light that shone on him as a Nissan employee, during the ZEOD's development.

According to Panoz, Bowlby -- who we could not reach for this story despite multiple in-person, telephone and email requests -- began working for Nissan in December 2012. Two months later, Nissan announced it would return to Le Mans in 2014 with another experimental car, which turned out eventually to be the ZEOD. Meanwhile, Panoz announced that the DeltaWing would race in the ALMS in 2013, using its own Panoz-built Elan four-cylinder, built along Mazda architecture.

It was getting to be too much for Don Panoz. To him, it was clear Bowlby bailed to Nissan, taking along the DeltaWing technology which Bowlby created, but Panoz paid for. In September 2013, Panoz suggested what might be to come.

"We feel very strongly that there is a potential problem," he said. "It's been interesting to watch people from Nissan trying to dodge the question, but the fact is that in their own press release they admit that the configuration of the ZEOD is the same as the DeltaWing. And we do have patents; in fact another one was just issued last week. We are in discussions with our legal advisors, and we'll see what happens."

What happened was that Nissan in November 2013 unveiled the "Blade Glider," a street-car concept (below) that, to Panoz, looked far too much like the ZEOD, which looked far too much like the DeltaWing, to be a coincidence. This was the last straw for Panoz: He had suggested that he planned to build a streetable DeltaWing, and now Nissan had built a racer, and was showing a street-car concept, that it might sell?

A day after Nissan unveiled the Blade Glider, Panoz filed a lawsuit, with the named defendants being Ben Bowlby, Darren Cox, Nissan Motor Co. Ltd., Nissan Motorsports International Co. Ltd., Nissan International S.A, and Nissan North America Inc.

As you would expect, the case continues. Nissan has had little to say, but Panoz actually took out a full-page ad in several publications, one with the headline, "You Can Put As Many Nissan Logos On It As You Like, But It's Still Our Design," above a photo of the DeltaWing, next to a photo of the ZEOD RC.

It would test any reader's patience to detail the lawsuit's points, but in general, at issue is whether Panoz or Bowlby owns the intellectual property that is the DeltaWing. It is easy to write that one off as the attempt of a bitter, portly, redheaded entrepreneur to draw blood, but other points in Panoz's 142-page lawsuit are actually more troubling, one being that Nissan never paid Panoz.

The suit claims Nissan promised $2 million, plus testing and racing costs, plus some engines. The suit claims Nissan received a "substantial amount" of publicity worth in excess of $2 million, an enormous understatement. The suit claims that Nissan never paid the $2 million, or expenses.

That's about the point where most of the media lost interest in Panoz vs. Nissan. But there is a recent development that could have an enormous impact on the case.

Nissan, not surprisingly, has filed multiple motions of its own, and one of them, a motion to dismiss the case for lack of personal jurisdiction, caused the Superior Court of Jackson County, Georgia, to appoint a special master to review the motion. The special master, Atlanta attorney Cary Ichter, issued his 32-page report on January 26. It backs the continuation of the court case, and makes some additional notations that likely have Nissan attorneys peeing their pants, as Ichter had access to many of the hitherto-private communications between the two parties, and among themselves.

Example: Ichter cites an internal Nissan document that says Nissan decided not to spend $60 million to buy into a partnership with the "original Deltawing partners" because Nissan would not own the intellectual property. "Therefore," the document reads, "ONLY way to gain knowledge of narrow track cars was to poach Ben Bowlby and make him a consultant."

Example: Ichter, after detailing the timeline late in 2012 when Bowlby was preparing the DeltaWing to compete at Petit Le Mans, said Bowlby was deep into discussions with Nissan, and Nissan was concerned about how much information actually belonged to Bowlby. Ichter wrote, "So, while Mr. Bowlby was in Georgia preparing the vehicle that bore the Nissan and NISMO trademarks -- declared by Nissan to be the Nissan DeltaWing -- running on an engine paid for by NML [Nissan Motor Company, Ltd.] for the purpose of enhancing the Nissan brand and Nissan's reputation for innovation, Nissan was recruiting (or 'poaching,' to use Nissan's word) Mr. Bowlby, allegedly for the purpose of acquiring information that it did otherwise not have access to and that would 'fast track' its progress."

Ichter cites an email from Darren Cox to his associates: "Contractual relationship with Deltawing partners (owners of the car) is very delicate. THEY MUST NOT FIND OUT WE ARE CONSIDERING A ROAD CAR. There would be serious implications."

Some of this information seems outside the scope of what Ichter, as special master, was appointed to address, but there it is -- and it's rough on Nissan.

Which, circuitously, brings us to this past weekend at Sebring. Panoz, in that press conference Friday afternoon, announced that the company would build two new DeltaWing-based GT cars, and since GT cars have to be based on a certain number (depending on the sanctioning body) of street cars, he's building those, too -- one a 110-horsepower family car, with a price tag less than $30,000, the other a 340-horsepower higher-performance car, priced at about $60,000.

Part of Panoz's case against Nissan is that he contends Nissan's suggestion that it might build a "narrow track" (in Nissan's words) passenger car like the Blade Glider hurts Panoz's plans to build DeltaWing-based street cars.

By going forward with plans to build those DeltaWing street cars, it bolsters that part of his case. Will he actually build them? "Absolutely!" Panoz told AUTOMOBILE. "They will happen." Details, though, are scarce; the company hopes to strike an agreement with an OEM for engines and other help, and Panoz stressed that power could be gas, diesel, electric, hybrid, fuel cell, whatever.

Clearly Panoz, often the Goliath in past court cases involving the pharmaceutical industry, enjoys being Davey for a change. Last week Panoz's lawyers filed a motion requesting a Nissan Power Point presentation that they are sure exists that could be additionally damning.

Why doesn't Nissan just get out its checkbook and make this go away? Because, Panoz said Friday, corporations and lawyers don't like to admit they're wrong.

It's unclear at this time whether the case could affect Nissan's plan for this year's 24 Hours of Le Mans, where the company will compete for overall victory for the first time since 1999, using Bowlby's revolutionary GTR-LM NISMO, the LMP1 car that finally broke ground in a pricey Super Bowl XLIX commercial. The car has a V-6 engine up front, driving the front tires, which are larger than the rear tires. A kinetic-energy recovery system can power two flywheels, to send additional power to rear wheels.

The car doesn't look as outrageous as the DeltaWing in person, but with the body off, it's a revelation, and AUTOMOBILE was up close and personal with the car during a test two weeks ago at Sebring. It is actually more mechanically ambitious than the DeltaWing, and has been predictably problematic: It made a handful of unfortunately slow laps at Sebring before breaking a carbon-fiber mounting point, and lay in pieces during the last day-and-a-half of testing. Nissan subsequently canceled its participation in two pre-Le Mans, FIA World Endurance Challenge races that it planned to contest. Nissan, and especially Darren Cox and Ben Bowlby, have a lot riding on the GTR-LM, and there is a lot of work left to do if the manufacturer is to be competitive against entries from Audi, Porsche and Toyota.

Finally, how is the DeltaWing race car doing?

Not great. It was fast at the Tudor United Sports Car Championship's season-opening Rolex 24 Hours at Daytona, but the car's longtime nemesis, the transmission, sidelined it again after 42 laps. The overall winners ran 740. The DeltaWing was the first of the 53 cars entered in the race to retire.

And last Saturday at the Mobil 1 Twelve Hours of Sebring, the DeltaWing qualified in 10th but couldn't start with the field because of throttle problems that surfaced on the pace lap. It dropped out a little after two-and-a-half hours because of a broken rear suspension. No one knows more than Don Panoz that in order to sell DeltaWings to the public, it needs to finish races.

The biggest competition, though, will be in court. Stay tuned.