Golden Boy Promotions Llc et al v. Alan Haymon et al

NOTICE OF MOTION AND MOTION for Summary Judgment

C.D. Cal.October 31, 2016

1                            Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT QUINN EMANUEL URQUHART & SULLIVAN, LLP John B. Quinn (SBN 90378) johnquinn@quinnemanuel.com Michael E. Williams (SBN 108542) michaelwilliams@quinnemanuel.com Adam B. Wolfson (SBN 262125) adamwolfson@quinnemanuel.com 865 S. Figueroa St., 10th Floor Los Angeles, California 90017 Telephone: 213.443.3000 Facsimile: 213.443.3100 Attorneys for Defendants Haymon Boxing LLC, Haymon Sports LLC, Haymon Boxing Management, and Haymon Holdings LLC [additional counsel listed on signature page] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION GOLDEN BOY PROMOTIONS, LLC, et al., Plaintiffs, v. ALAN HAYMON, et al., Defendants. Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS ALAN HAYMON DEVELOPMENT, INC., HAYMON BOXING LLC, HAYMON BOXING MANAGEMENT, HAYMON HOLDINGS LLC, AND HAYMON SPORTS LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Judge: Hon. John F. Walter Hearing Date: November 28, 2016 Time: 1:30 P.M. Place: Courtroom No. 16 Filing Date: May 5, 2015 Trial Date: March 14, 2017 REDACTED VERSION OF DOCUMENT FILED PARTIALLY UNDER SEAL PURSUANT TO ORDER OF THE COURT DATED OCTOBER 28, 2016 (DKT 141) Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 1 of 32 Page ID #:4066 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 28, 2016 at 1:30 p.m., pursuant to the Amended Case Management Order, or on the first available date thereafter that the parties may be heard based on the Court’s availability, Defendants Haymon Boxing LLC, Haymon Sports LLC, Haymon Boxing Management, Haymon Holdings LLC, and Alan Haymon Development, Inc. (collectively, the “Haymon Entities”) will, and hereby do, move for summary judgment pursuant to Fed. R. Civ. P. 56, before the Honorable John F. Walter in Courtroom 16 in the United States District Court for the Central District of California, located at 312 North Spring Street, Los Angeles, California 90012. For the reasons discussed in the attached Memorandum of Points and Authorities, the undisputed facts entitle the Haymon Entities to summary judgment as a matter of law on each of Plaintiffs’ claims for violations of the Sherman Act; for violations of California Unfair Practices Act, Bus. & Prof. Code § 17000 et seq.; and for violations of California Unfair Competition Law, Bus. & Prof. Code § 17200 et seq. This Motion is based on this Notice of Motion and Motion; the attached Memorandum of Points and Authorities; the concurrently-filed Separate Statement of Undisputed Facts and Conclusions of Law; the concurrently-filed Declarations of Leon Margules, Louis DiBella, Marshall Kauffman, Tom Brown, Yvon Michel, Kery Davis, Steve Farhood, Duncan Cameron, Michael E. Williams, and Alan Haymon, and all exhibits attached therseto; all matters of which this Court may properly take judicial notice; and such other evidence and argument as may be presented at or before the hearing on the Motion. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 2 of 32 Page ID #:4067 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Certificate of Compliance This motion is made following the conference of counsel concluded on October 23, 2016 pursuant to Local Rule 7-3. DATED: October 31, 2016 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN, LLP By/s/ Michael E. Williams Michael E. Williams Attorneys for Defendants Haymon Boxing LLC, Haymon Sports LLC, Haymon Boxing Management, and Haymon Holdings LLC KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) hweitzman@kwikalaw.com Jeremiah T. Reynolds (SBN 223554) jreynolds@kwikalaw.com 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 Telephone: 310.566.9800 Facsimile: 310.566.9850 Attorneys for Defendant Alan Haymon Development, Inc. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 3 of 32 Page ID #:4068 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TABLE OF CONTENTS Page PRELIMINARY STATEMENT ....................................................................................................... 1 STATEMENT OF FACTS ................................................................................................................ 2 ARGUMENT 5 I. SUMMARY JUDGMENT IS APPROPRIATE ON THE ATTEMPTED MONOPOLIZATION CLAIM BECAUSE GBP CANNOT ESTABLISH TRIABLE ISSUES OF FACT ON ANY ELEMENTS ........................................................ 5 A. There Is No Evidence Of Specific Intent To Control Prices Or Destroy Competition ............................................................................................................... 6 B. GBP Fails To Identify Any Anticompetitive Or Predatory Conduct ........................ 7 1. The Haymon Entities’ TV Agreements Have Expanded Overall Output For Televised Boxing Programming ................................................. 7 2. GBP’s “Refusal to Deal” Allegations Are Unsupported Or Not Exclusionary .................................................................................................. 9 3. GBP’s Venue Blocking Claim Is Baseless .................................................. 12 4. GBP’s Predatory Pricing Claim Is Implausible and Unsupported .............. 13 C. GBP Cannot Establish Antitrust Injury ................................................................... 15 II. SUMMARY JUDGMENT IS APPROPRIATE ON THE CALIFORNIA UNFAIR PRACTICES ACT CLAIM ................................................................................................ 18 III. SUMMARY JUDGMENT ON GBP’S CALIFORNIA UCL CLAIM IS APPROPRIATE FOR MULTIPLE REASONS ................................................................. 20 CONCLUSION .............................................................................................................................. 25 Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 4 of 32 Page ID #:4069 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES Page Cases Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., No. 14-15562, 2016 WL 4709868, --- F.3d --- (9th Cir. Sept. 9, 2016) ..................................................................................... 10 Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of California, 190 F.3d 1051 (9th Cir. 1999) ............................................................................................. 15 Am. Booksellers Ass’n, Inc. v. Barnes & Noble, Inc., 135 F. Supp. 2d 1031 (N.D. Cal. 2001) .............................................................................. 18 Bay Guardian Co. v. New Times Media LLC, 187 Cal. App. 4th 438 (2010) .............................................................................................. 18 Bebe Au Lait, LLC v. Mothers Lounge, LLC, No. 5:13-cv-03035, 2014 WL 4744758 (N.D. Cal. Sept. 23, 2014) ................................... 19 Big Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096 (9th Cir. 1999) ............................................................................................. 17 Brantley v. NBC Universal, Inc., 675 F.3d 1192 (9th Cir. 2012) ............................................................................................. 15 Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) ...................................................................................................... 13, 14 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) ............................................................................................................ 17 Cargill v. Monfort of Colorado, 479 U.S. 104 (1986) ............................................................................................................ 13 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................................. 6 Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163 (1999) ......................................................................................................... 20 Chavez v. Whirlpool Corp., 93 Cal. App. 4th 363 (2001) .......................................................................................... 12, 20 ChriMar Sys., Inc. v. Cisco Sys., Inc., 72 F. Supp. 3d 1012 (N.D. Cal. 2014) ................................................................................ 20 Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ........................................................................................................ 18 DocMagic, Inc. v. Ellie Mae, Inc., 745 F. Supp. 2d 1119 (N.D. Cal. 2010) .............................................................................. 20 Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 5 of 32 Page ID #:4070 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Dooley’s Hardware Mart v. Food Giant Markets, Inc., 21 Cal App 3d 513 (1971) ................................................................................................... 19 In re Tobacco II Cases, 46 Cal.4th 298 (2009) .......................................................................................................... 20 Intamin, Ltd. v. Magnetar Techs. Corp., 623 F. Supp. 2d 1055 (C.D. Cal. 2009) ............................................................................... 22 Inter-Cty. Title Co. v. Data Trace Info. Servs., LLC, 105 F. App’x 136 (9th Cir. 2004) .................................................................................... 6, 16 Jensen Enter., Inc. v. Oldcastle Precast, Inc., 375 Fed. App’x 730 (9th Cir. 2010) .................................................................................... 18 Kirkland v. Golden Boy Promotions, No. 12-cv-07071 (C.D. Cal. June 24, 2013) ....................................................................... 11 Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011) .......................................................................................................... 23 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................................................ 23 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) ...................................................................................................... 13, 14 Newson v. Countrywide Home Loans, Inc., No. C 09-5288 SBA, 2010 WL 2034769 (N.D. Cal. May 19, 2010) .................................. 21 O.S.C. Corp. v. Apple Computer, Inc., 601 F. Supp. 1274, 1292 n.8 (C.D. Cal. 1985), aff’d, 792 F.2d 1464 (9th Cir. 1986) ................................................................................... 15 Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157 (9th Cir. 1997) ..................................................................................... 8, 9, 13 Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc., 555 U.S. 438 (2009) ............................................................................................................ 10 Pool Water Products v. Olin Corp., 258 F.3d 1024 (9th Cir. 2001) ....................................................................................... 15, 16 Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421 (9th Cir. 1995) ..................................................................................... 5, 14, 15 Rheumatology Diagnostics Lab. v. Aetna, Inc., No. 12-cv-05847, 2015 WL 1744330 (N.D. Cal. Apr. 15, 2015) ....................................... 19 Sandler v. Gordon, 94 Cal. App. 2d 254 (1949) ................................................................................................. 18 Twin City Sportservice, Inc. v. Charles O. Finley & Co., Inc., 676 F.2d 1291 (9th Cir. 1982) ............................................................................................... 8 Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 6 of 32 Page ID #:4071 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iv- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Statutes 15 U.S.C. § 6301 ............................................................................................................................. 22 15 U.S.C. § 6309 ............................................................................................................................. 17 15 U.S.C. §§ 6309(a) and (d) .......................................................................................................... 17 California Unfair Competition Law, Bus. & Prof. Code § 17200 ........................................... passim California Unfair Practices Act, Bus. & Prof. Code § 17000 ........................................................... ii California Unfair Practices Act, Bus. & Prof. Code § 17043 ......................................................... 19 California Unfair Practices Act, Bus. & Prof. Code § 17044 ......................................................... 19 Fed. R. Civ. P. 56 .............................................................................................................................. ii Other Authorities Health and safety of professional boxing: hearings before the Committee on Commerce, Science, and Transportation, 103. Cong. 58 (1994) ......................................................................... 21 Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 7 of 32 Page ID #:4072 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT MEMORANDUM OF POINTS AND AUTHORITIES PRELIMINARY STATEMENT In 2010, Oscar De La Hoya stated that “The Don Kings and Bob Arums have had a chokehold on [boxing] for the last 40 years. . . . Now we have to think outside of the box; we have to think like the NBA and MLB . . . . [The UFC is] doing the right thing, and its time for boxing to do the right thing, as long as we don’t have those obstacles named Don King and Bob Arum. . . . But our ultimate goal is to [also] have boxing on free tv, on the ABCs, CBSs and NBCs of the world.” (UF72) In 2011, Bob Arum stated that if he could get boxing back on network television it would help all of boxing. (UF73) Defendants Haymon Sports LLC, Haymon Boxing LLC, Haymon Boxing Management, Haymon Holdings LLC and Alan Haymon Development, Inc. (collectively, the “Haymon Entities”) have done what Mr. De La Hoya and Mr. Arum ascribed to, but then chose not to come along for the ride. This lawsuit is not about remedying an antitrust violation; it is about protecting the position of plaintiff Golden Boy Promotions (“GBP”) as a member of a long line of boxing promoter oligopolists. The undisputed evidence confirms that the Haymon Entities have sought to revive and grow the sport of boxing for the benefit of boxers, fans, networks, managers, promoters, and the many other entities who will gain from a growing sport. They have done so by bringing boxing back to free network television with the “Premier Boxing Champions” series (“PBC”), which was meant to expand the potential fan base for the sport and rekindle broadcast TV and basic cable networks’ interest in airing and paying for boxing programming, as they used to do through the 1980s. In just 20 months, the PBC has exponentially increased the amount of boxing on free television, drawing in more consumers, giving more boxers national exposure, and putting more people to work in the boxing industry—including promoters. Increased output and lower prices are the epitome of procompetitive conduct, which is dispositive to GBP’s claims. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 8 of 32 Page ID #:4073 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT The Haymon Entities have also sought to level the playing field between powerful promoters, on the one hand, and boxers on the other, to ensure that boxers are not exploited during their short and risky careers through oppressive long-term promotional contracts. As a result, boxers managed by the Haymon Entities (along with the opponents they fight) have been paid more and have had more public exposure to advance their careers, because the boxers keep control of their careers (i.e., they remain “free agents”), by having the right to decide who they fight, when they fight, and if the amount proposed is sufficient. GBP does not like this concept of boxer “free agency,” because GBP prefers that boxers enter into long-term promotional agreements, so that GBP can control when they fight, what the boxer is paid, and what the promoter earns. But, that GBP may prefer it differently for its own economic benefit does not give rise to antitrust claims. The undisputed facts demonstrate that GBP’s asserted claims are not only legally and factually baseless, but misapprehend the very purpose of the antitrust laws. Accordingly, this case should be dismissed on summary judgment. STATEMENT OF FACTS It is widely recognized that for boxing to have the success in America that other major sports enjoy, there must be meaningful network television of boxing. (UF 74) Although boxing had a strong network television presence up through the ‘80s (making boxers like Sugar Ray Leonard, Marvin Hagler, and Roberto Duran household names), since then it has all but disappeared from network television. (UF 75) This decline is attributed to, among other factors, a change in the distribution model and an aging and declining fan base, which have made major networks such as ABC, NBC, and CBS unwilling to pay significant license fees to broadcast boxing. (UF 76) Premium-pay cable networks HBO and Showtime, and pay-per-view (“PPV”), filled this vacuum. These channels made some boxing superstars and a handful of promoters very rich, but they made boxing a “niche” and Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 9 of 32 Page ID #:4074 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT very expensive sport to follow for fans, providing no natural path for developing the next generation of stars. (UF 77) Over time, boxing’s popularity declined inexorably, losing ground first to the professional sports leagues (like the NFL, NBA, and MLB) and later to rival combat sports like MMA, under the banner of the UFC. (UF 78) In order for boxing to survive and possibly grow as a sport, it needed to return to network television where millions of Americans could have free access to it – a fact publicly recognized by promoters, boxers, and industry insiders like plaintiff Bernard Hopkins, plaintiff Oscar de la Hoya, and Bob Arum, CEO of Top Rank. (UFs 72, 73, & 79.) In approximately 2001, Al Haymon entered boxing as a manager. (UF 80) With a background in the music and television industries, Mr. Haymon realized how vulnerable boxers were to exploitation by powerful promoters. (UFs 81 & 82) In 2013, Haymon founded Haymon Sports LLC (“Haymon Sports”), which continues the management services of Alan Haymon Development, Inc. (“AHD”). (UFs 83 & 84) Haymon Sports, like AHD did, seeks to provide boxers (whose careers are very short and who risk so much inside the ring) better compensation and more leverage when negotiating with promoters. (UF 85) Haymon Sports continues the model of AHD and takes a smaller management commission of the boxers’ earnings (10-15% compared to the prevailing rate of 33%), and such commission is generally only payable after the boxer’s purse reaches a negotiated floor, frequently in the amount of $100,000 to $1,000,000, but also as high as $3,000,000. (UF 87) As a result of Haymon Sports’ sound advice (and that of other Haymon companies before it), and the better economic terms provided to its boxers, Haymon Sports grew to represent over one hundred fighters by the end of 2013. (UF 88) Haymon Sports has managed or advised many of this generation’s most successful fighters, including Floyd Mayweather, Jr., the world’s highest-paid athlete in 2014 and 2015; Amir Khan; and current welterweight champions Danny Garcia and Keith Thurman. (UF 89) Haymon Sports has worked with promoters across the industry Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 10 of 32 Page ID #:4075 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT (including GBP, Top Rank, Dibella Entertainment, and others) to secure high-paid bouts and title fights, guiding his fighters to lucrative careers. (UF 90) While Haymon Sports was able to benefit its boxers by demanding better terms from promoters, the opportunity for improvement was limited by the overall decline in the marketplace for boxing. The Haymon Entities explored the viability of bringing boxing back to network television to reach much wider audiences. The Haymon Entities’ first goal was to establish the brand and attract audiences, to demonstrate to television networks that airing boxing was a viable business strategy. (UF 91) In late 2013 or early 2014, the Haymon Entities approached NBC with a proposal that NBC pay a rights fee to air boxing on its network. (UF 180) NBC summarily rejected any proposal that it pay a rights fee for boxing. (UF 181) In response, the Haymon Entities decided to buy time across a number of television platforms, to demonstrate that boxing could generate a substantial audience and could sell commercial inventory, and then the Haymon Entities would go back to the networks with a renewed proposal that they pay a license fee. (UFs 91, 99, & 100) On March 7, 2015, the Haymon Entities launched the PBC with its first broadcast. (UF 92) The PBC was an attempt to bring boxing back to free television, reversing the long-term trend of declining interest in the sport. (UF 93) Overall, the PBC has presented more than 80 televised shows to a combined audience in excess of 100 million US viewers. (UF 94) It has given sports fans the chance to watch some of the best fighters in the sport without having to pay for premium cable subscriptions or buy individual PPV broadcasts. (UF 95) More broadly, the PBC has brought dozens of shows to free television audiences, exposing the sport to a new generation of fans. (UF 96) Perhaps the biggest beneficiaries of the PBC have been the boxers who have been included within these television shows (more than a third of whom are not associated with Haymon Sports), who earned larger purses and greater public exposure than otherwise would have been possible. (UFs 97 & 98) Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 11 of 32 Page ID #:4076 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT GBP has alleged violations of the Sherman Act, California’s Unfair Practices Act (“UPA”) and California’s Unfair Competition Law (“UCL”) against the Haymon Entities and Alan Haymon individually. (UF 103) As a result of a prior Settlement Agreement between GBP and the Haymon Entities, GBP’s allegations in this action are expressly limited to events occurring on or after January 1, 2015, which is defined as the “Covered Period.” (UFs 104 & 105)1 ARGUMENT I. SUMMARY JUDGMENT IS APPROPRIATE ON THE ATTEMPTED MONOPOLIZATION CLAIM BECAUSE GBP CANNOT ESTABLISH TRIABLE ISSUES OF FACT ON ANY ELEMENTS GBP’s claim for attempted monopolization under Section 2 of the Sherman Act requires it to establish each of the following elements: “(1) specific intent to control prices or destroy competition; (2) predatory or anticompetitive conduct directed at accomplishing that purpose; (3) a dangerous probability of achieving ‘monopoly power’; and (4) causal antitrust injury.” Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995). To prove a dangerous probability of achieving “monopoly power,” GBP must show the likelihood of obtaining market power in the relevant market.2 Id. at 1434. At summary judgment, “[i]f [the Haymon Entities] show[] that there is an absence of evidence to support [GBP’s] case, [GBP] bears the burden of producing 1 2 As explained more fully in the concurrently filed Motion for Summary Judgment by Alan Haymon, the undisputed facts confirm that GBP cannot establish relevant markets or market power in the alleged markets as a matter of law. Those arguments, which are also fatal to the attempted monopolization claim, are incorporated by reference herein. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 12 of 32 Page ID #:4077 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT evidence sufficient to sustain a jury verdict on those issues for which it bears the burden at trial.” Rebel Oil, 51 F.3d at 1435 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). GBP cannot do so. Failure to satisfy even one of these elements would warrant summary judgment; GBP satisfies none. A. There Is No Evidence Of Specific Intent To Control Prices Or Destroy Competition GBP cannot establish the Haymon Entities had a specific intent to control prices or destroy competition; instead, the evidence demonstrates that they sought to increase competition and grow the boxing industry. Over the last few decades, boxing had virtually disappeared from major television networks and largely been limited to premium subscription cable networks, like HBO and Showtime, plus PPV events. (UFs 75 & 189) Many believed that a return to network television was essential to boxing’s survival, including Oscar De La Hoya, who stated, “our ultimate goal is to [also] have boxing on free T.V.” (UF 72) While many tried to get boxing back on free television, the networks were unwilling to pay amounts that would make it a profitable venture. (UF 99) The Haymon Entities thus stepped up and invested substantial sums to purchase air time with the goal of revitalizing fan interest and demonstrating the financial viability of boxing on network television; they were the only ones willing to do so. (UF 100) The ultimate goal of this project was to create a major sports property that could sustain and grow the sport through substantial television license fees (similar to the NHL, NASCAR, Major League Soccer, and the UFC). (UFs 102) This was a goal even Oscar De La Hoya lauded before this lawsuit. (UF 72) There is nothing illegal or anticompetitive about an effort to grow the market. Inter-Cty. Title Co. v. Data Trace Info. Servs., LLC, 105 F. App’x 136, 139 (9th Cir. 2004) (affirming summary judgment where evidence showed the defendant’s actions increased output in the market). Given this clear “absence of evidence” regarding intent to monopolize, Rebel Oil, 51 F.3d at 1435, summary judgment is therefore appropriate on GBP’s attempted monopolization claim. See e.g., Inter-Cty. Title, 105 F. App’x at 139. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 13 of 32 Page ID #:4078 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT B. GBP Fails To Identify Any Anticompetitive Or Predatory Conduct Summary judgment is also appropriate because GBP cannot establish any anticompetitive conduct. “[A]n act is deemed anticompetitive under the Sherman Act only when it harms both allocative efficiency and raises the prices of goods above competitive levels or diminishes their quality.” Rebel Oil, 51 F.3d at 1433. Significantly, the SAC is expressly limited to conduct occurring during the “Covered Period.” (UF 105) Since January 1, 2015, the SAC asserts that the Haymon Entities engaged in the following anticompetitive acts: (1) entering into exclusive television agreements (UF 107); (2) refusing to deal with so called “legitimate” promoters (UFs 108 & 215); (3) venue blocking (UF 109); and (4) violating the Muhammad Ali Boxing Reform Act (the “Ali Act”) (UF 110). Based on the undisputed facts, GBP cannot establish that any conduct by the Haymon Entities was anticompetitive. 1. The Haymon Entities’ TV Agreements Have Expanded Overall Output For Televised Boxing Programming GBP alleges the Haymon Entities entered “long term exclusive agreements with nearly all major sports broadcasters in the United States,” which constitute anticompetitive behavior. (UF 107) The only television agreements the Haymon Entities entered into during the Covered Period are with (the “TV Agreements”).3 GBP cannot establish that any of these TV Agreements are anticompetitive. 3 Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 14 of 32 Page ID #:4079 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Exclusive dealing arrangements are analyzed under the rule of reason. Twin City Sportservice, Inc. v. Charles O. Finley & Co., Inc., 676 F.2d 1291, 1303-04 (9th Cir. 1982). Under the rule of reason, an exclusive dealing arrangement is only anticompetitive if it “foreclose[s] competition in a substantial share of the line of commerce affected.” Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1162 (9th Cir. 1997). There are “well-recognized economic benefits to exclusive dealing arrangements, including the enhancement of interbrand competition.” Id. Moreover, “exclusive dealing arrangements imposed on distributors rather than end users are generally less cause for anticompetitive concern. . . . If competitors can reach the ultimate consumers of the product by employing existing or potential alternative channels of distribution, it is unclear whether such restrictions foreclose from competition any part of the relevant market.” Id. at 1162-63.4 Here, it is undisputed that the exclusivity provisions imposed on networks (i.e., distributors, not consumers) did not foreclose a substantial share of the market. The Haymon Entities never had exclusive agreements with HBO, Showtime, or any PPV outlets, which were—and remain—the primary and most profitable distribution channels for boxing programming throughout the Covered Period. (UFs 122 & 124) In addition, during the Covered Period and after Haymon Sports entered its Fox Sports 1 contract, (UFs 113, 114, & 115) 4 As an initial matter, GBP’s complaint relies on exclusivity provisions which are no longer in force. In May 2016, the Haymon Entities waived the exclusivity provisions in the TV Agreements. (UF 123) GBP and other promoters are free to negotiate directly with any television network, to the extent those networks are interested in dealing with GBP. As such, there is clearly no foreclosure and no attempted monopolization by the Haymon Entities. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 15 of 32 Page ID #:4080 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT (UF 117) It is undisputed that GBP and other promoters “reach[ed] the ultimate consumers of the product by employing existing or potential alternative channels of distribution.” Omega at 1162-63. The TV Agreements also did not “foreclose [any] competition” because they were made with networks that had not aired a significant amount (or any) boxing in the recent past.5 (UF 132) 6 (UF 134) In any event, the universe of television stations is not limited to those broadcasters with whom the Haymon Entities have made agreements. 2. GBP’s “Refusal to Deal” Allegations Are Unsupported Or Not Exclusionary GBP alleges that the Haymon Entities engaged in anticompetitive conduct through its supposed refusal to allow any Haymon Sports-managed “Championship Caliber Boxer” to enter into a promotional contract during the Covered Period with “Golden Boy, Top Rank, Main Events, or any other legitimate promoter.” (UF 137) There are numerous, fatal problems with this argument. First, from a legal standpoint, the Haymon Entities and the boxers they manage and advise have the right not to do business with GBP. “[T]he Sherman Act 5 Moreover, even as concerns these networks, the TV Agreements could not foreclose competition because they were limited in duration and had several exceptions. (UFs 125-131.) “[T]he short duration and easy terminability of these agreements negate substantially their potential to foreclose competition.” Omega at 1163. 6 Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 16 of 32 Page ID #:4081 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT ‘does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.’” Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., No. 14- 15562, 2016 WL 4709868, --- F.3d --- (9th Cir. Sept. 9, 2016), at *8 (citations omitted). “[T]here is ‘no duty to deal under the terms and conditions preferred by [a competitor’s] rivals,’” Id. at *9 (quoting Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc., 555 U.S. 438, 457 (2009)). “[T]here is only a duty not to refrain from dealing where the only conceivable rationale or purpose is ‘to sacrifice short-term benefits in order to obtain higher profits in the long run from the exclusion of competition.’” Id. (quoting MetroNet Servs Corp. v. Qwest Corp., 383 F.3d 1124, 1132 (9th Cir. 2004)). The undisputed evidence confirms that the Haymon Entities had no problem working with GBP (or any other promoter) so long as the terms were in its boxers’ best interest. (UF 138) One need look no further than the hugely successful HBO PPV fight earlier this year between Canelo Alvarez (GBP-promoted) and Amir Khan (Haymon Sports-managed), which resulted in significant payouts to both boxers and GBP. (UFs 139-146) Or the biggest fight in boxing history between Manny Pacquiao (Top Rank-promoted) and Floyd Mayweather, Jr. (Haymon Sports-advised). (UFs 147, 148 & 149) There have been a number of other fights between Haymon Sports-managed or advised boxers and boxers promoted by GBP, Top Rank and other promoters during the Covered Period. (UF 150) GBP’s real complaint is that Haymon Sports generally advises its boxers they should not sign long-term promotional agreements that primarily benefit promoters and provide no financial stability or guarantee to the fighter putting his life at risk in every fight. (UF 86) This is simply rational business advice, not anticompetitive conduct. Aerotec, 2016 WL 4709868 at *9 (“[T]here is ‘no duty to deal under the terms and conditions preferred by [a competitor’s] rivals[.]’”). The terms of GBP’s standard promotional agreement make it abundantly clear why the Haymon Entities, Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 17 of 32 Page ID #:4082 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT which owe a fiduciary obligation to their boxers, would advise those boxers against signing such agreements. (UFs 152 & 153) The “Guaranteed Minimum Purse Amounts” for each fight no longer apply if the boxer loses a fight. (UFs 154 & 155) And the standard promotional agreements are automatically extended if the boxer achieves certain levels of success and even after expiration, GBP has a right of last refusal which allows it the opportunity to match any offer the boxer receives from another promoter.7 (UFs 159 & 160). It is no wonder that Oscar De La Hoya successfully sued Top Rank to get out of a similar contract. (UF 161) Given the effect of these onerous terms on a boxer’s already-short career, it is also not surprising the Haymon Entities advise its clients to avoid them. (UF 86) What is perhaps most troubling about GBP’s “refusal to deal” allegations is the evidence that shows it was GBP that refused to work with the Haymon Entities, not the other way around. For example, in May 2015 (during the Covered Period), GBP’s Robert Diaz received a suggestion to get onto a card for a PBC series show. (UF 162)8 Mr. Diaz responded, “Are you serious? You do know we have sued Haymon right?” Id. ( (UF 163)) Although GBP has the right not to do business 7 When Judge Morrow held that any extensions of GBP’s term beyond five years were illegal under California law (Kirkland v. Golden Boy Promotions, No. 12-cv-07071 (C.D. Cal. June 24, 2013), ECF. No. 38), GBP changed its promotional agreements to be governed by Nevada law, which does not have the same limitation. (UFs 156, 157 & 168) 8 The “Wilder v. Molina card” in this document refers to the slate of bouts on a PBC show that aired on June 21, 2015. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 18 of 32 Page ID #:4083 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT with the Haymon Entities, just like the Haymon Entities have the right not to do business with GBP, GBP’s efforts to prop up a refusal to deal theory based on allegations it knows to be false highlight the need for summary judgment. 3. GBP’s Venue Blocking Claim Is Baseless GBP contends that during the Covered Period the Haymon Entities “locked up” desirable dates in major arenas to prevent GBP from promoting bouts at those arenas on those critical dates. (UF 109) These claims are unsubstantiated and, in any event, are not anticompetitive absent a showing of substantial foreclosure. GBP admits that it is common practice in the industry to put a hold on multiple venues while negotiating for the best location. (UF 164) In fact, GBP’s President has publicly stated that he typically places multiple holds for a single fight. (UF 165) GBP identified the Matthysse v. Provodnikov fight, held on April 18, 20159, as one that it wanted to hold at a “foreclosed arena” (the Stub Hub Center in Carson, California). (UF 166) GBP says it was “forced to book the fight at an arena in New York, only to discover later that the Haymon Defendants had subsequently cancelled their holds on the Stub Hub Center for the dates requested.” (UF 167) The undisputed facts prove otherwise. There was a fight at the Stub Hub Center on April 18, 2015: Chavez, Jr. v. Fonfara (both Haymon-managed), which was a Showtime Championship Boxing event (not a PBC event).10 (UFs 169 & 170) The promoter, TGB Promotions, negotiated and signed the venue agreement. (UF 173) In any event, GBP admits there are numerous alternative venues in the greater Los Angeles area to hold such a fight and it has no evidence the Haymon Entities put holds on 9 The SAC erroneously identifies the date of this fight as April 19, 2015; however, testimony and documents identify the actual date as April 18, 2015. (UFs 166, 171 & 172) 10 GBP’s fight at the New York venue not only turned out to be hugely successful and voted the Fight of the Year, but its television ratings far exceeded the Chavez Jr. fight at the Stub Hub Center that same evening. (UFs 171 & 172) Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 19 of 32 Page ID #:4084 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT any of them. (UFs 174 & 175); see also Omega, 127 F.3d at 1163 (no substantial foreclosure when alternative channels of distribution existed). Thus, there is no evidence the Haymon Entities blocked any venues at all, let alone enough venues to constitute some kind of market-wide foreclosure. 4. GBP’s Predatory Pricing Claim Is Implausible and Unsupported As the Supreme Court has recognized, “predatory pricing schemes are rarely tried, and even more rarely successful.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 589 (1986). “[T]he mechanism by which a firm engages in predatory pricing—lowering prices—is the same mechanism by which a firm stimulates competition; because `cutting prices in order to increase business often is the very essence of competition . . . [;] mistaken inferences … are especially costly, because they chill the very conduct the antitrust laws are designed to protect.’” Cargill v. Monfort of Colorado, 479 U.S. 104, 122 n.17 (1986) (quoting Matsushita, 475 U.S. at 594). Accordingly, in order for a plaintiff to establish predatory pricing, it must prove: (1) below cost pricing; and (2) “a reasonable expectation of recovering, in the form of later monopoly profits, more than the losses suffered.” Matsushita, 475 U.S. at 588-589. Without the probability of recoupment, “predatory pricing produces lower aggregate prices in the market, and consumer welfare is enhanced,” eliminating a predatory pricing claim. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224 (1993). GBP alleges the Haymon Entities incurred “temporary losses estimated in the hundreds of millions of dollars” through time buys on networks “to exclude plaintiffs and other legitimate promoters from competing in that essential part of the business,” and that, once they achieve monopoly power, they will somehow recoup their losses. (UF 176) GBP has not a speck of evidence to back this up. As an initial matter, it is inexplicable why, if the Haymon Entities are seeking to force promoters like GBP and Top Rank out of business, they would agree to put millions (or tens of millions) of dollars in GBP’s and Top Rank’s pockets by helping Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 20 of 32 Page ID #:4085 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT make major fights like Canelo v. Khan or Mayweather v. Pacquiao. (See, e.g., UF 145) As implausible as that is, there is also no plausible theory (let alone evidence) by which GBP can establish a reasonable expectation of recoupment by the Haymon Entities, which is a necessary element of its claim. The Haymon Entities’ time buys are on major networks that were generally not showing boxing prior to the launch of the PBC series. (UF 177) In fact, NBC laughed at the Haymon Entities’ original proposal that NBC pay a license fee for boxing. (UF 181) There were no time buys on HBO or Showtime, the dominant networks used by promoters such as GBP and Top Rank. (UF 182) Given these facts, there is no evidence to support the reasonable probability of successful recoupment. Although GBP’s proffered economic expert, Robert Kneuper, Ph.D., states that “Haymon will likely be forced to significantly reduce televised boxing events and engage in actions enabling it to recoup the substantial losses it has incurred” (UF 184), he provides no economic analysis or explanation to support this conclusory statement, and in fact testified that he did not perform a recoupment analysis and does not know how that could happen with the Haymon Entities (UF 183). In fact, he concedes the opposite: “the available evidence indicates Haymon ‘free tv’ growth strategy has not achieved the success that Haymon had hoped for and that Haymon has lost substantially more money than the hundreds of millions of dollars he anticipated when forming this risky business venture.” (UF 185) “When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable,” summary judgment is appropriate. Rebel Oil, 51 F.3d at 1435-36 (quoting Brooke Group, 509 U.S. at 242) (quotations omitted); Matsushita, 475 U.S. at 587 (“Where the record taken as a whole could Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 21 of 32 Page ID #:4086 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”) (citation omitted).11 C. GBP Cannot Establish Antitrust Injury The four requirements for antitrust injury are “(1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows from that which makes the conduct unlawful, and (4) that is of the type the antitrust laws were intended to prevent.” Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of California, 190 F.3d 1051, 1055 (9th Cir. 1999). As explained above, GBP has no evidence of unlawful conduct. Nor can it establish the other requirements of antitrust injury. For purposes of antitrust injury, the alleged “loss [must] flow[] from an anticompetitive aspect or effect of the defendant’s behavior.” Pool Water Products v. Olin Corp., 258 F.3d 1024, 1034 (9th Cir. 2001). “If the injury flows from aspects of the defendant’s conduct that are beneficial or neutral to competition, there is no antitrust injury, even if the defendant’s conduct is illegal per se.” Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995). “It is well established that the antitrust laws are only intended to preserve competition for the benefit of consumers.” Am. Ad Mgmt., 190 F.3d at 1055; Brantley v. NBC Universal, Inc., 675 F.3d 1192, 1204 (9th Cir. 2012) (dismissing antitrust claim that did “not include any allegation of injury to competition, as opposed to injuries to the plaintiffs”). Where it is undisputed “that competition (and the number of competitors) was intense before, and increased after, … summary judgment [based on the lack of anticompetitive conduct] is appropriate.” O.S.C. Corp. v. Apple Computer, Inc., 601 F. Supp. 1274, 1292 n.8 (C.D. Cal. 1985), aff’d, 792 F.2d 1464 (9th Cir. 1986). 11 GBP’s “tying” claim is addressed in the concurrently filed Motion for Summary Judgment filed by Al Haymon in his individual capacity, and those arguments are incorporated herein by reference. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 22 of 32 Page ID #:4087 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Here, it is undisputed that the PBC actually increased competition for the benefit of consumer welfare. According to GBP’s President, approximately two and a half years ago, “[t]he market became very competitive,” in part because of the PBC. (UF 186) Similarly, Mr. Hopkins testified that he believed PBC would “bring boxing in [sic.] the forefront, primetime. To me, whether we was [sic.] doing it or somebody else was doing it, it was just a good thing.[…] I thought it was good for the fighters. Yea, boxers. I thought it was good for the fans, and they get the – a chance to actually watch the next superstar.” (UF 187) Even GBP’s expert concedes “there has been a growth in U.S.-televised boxing events during 2015 and 2016.” (UF 188) The economic evidence confirms this increase in competition increased output and increased consumer welfare, which defeats any claim of antitrust injury. Prior to the launch of the PBC, boxing events were only available on a few networks, most of which were premium cable networks (HBO and Showtime) or PPV events. (UF 189) re-introducing boxing to millions of Americans through more widely-available (and widely-watched) broadcast and cable networks. (UF 190) The greater availability of boxing to consumers, particularly on free TV networks, is the antithesis of harm to competition. Pool Water, 258 F.3d at 1034 (recognizing that antitrust injury “means injury resulting from higher prices or lower output, the principal vices proscribed by the antitrust laws.”).12 GBP’s own expert concedes that lower prices and increased output are hallmarks of procompetitive activity. (UF 193); see also Inter-Cty., 105 F. App’x at 139. 12 The Haymon Entities’ actions have also benefited boxers, resulting in lower management fees and higher purse amounts. (UF 191) Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 23 of 32 Page ID #:4088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT GBP has made much of the Ali Act in this case, but that is not a basis for antitrust injury either. According to GBP, the Haymon Entities are both manager and promoter of boxers in violation of the Ali Act “so as to limit competition and gain an unfair advantage over legitimate promoters . . . .” (UF 193). As an initial matter, GBP misses the point of the Ali Act. The express purpose of the Act is “to protect the rights and welfare of professional boxers . . . by preventing certain exploitive, oppressive, and unethical business practices.” (UF 194) It was enacted because “of the restrictive and anticompetitive business practices of certain promoters and sanctioning bodies, to the detriment of the athletes and the ticket- buying public.” (UF 195) The only parties with standing to assert a violation of the Ali Act are boxers (when they are harmed by the anticompetitive practices of promoters) or government agencies. (UF 197); 15 U.S.C. §§ 6309(a) and (d).13 As a promoter, GBP cannot establish antitrust injury based on alleged violations of a statute intended to protect boxers from anticompetitive conduct by promoters, because any alleged harm to GBP does not “flow[ ] from that which makes defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). As the Supreme Court explained in Brunswick, “[t]he injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be ‘the type of loss that the claimed violations . . . would be likely to cause.’” Id. at 489.14 13 The Ali Act amended the Professional Boxing Safety Reform Act of 1996 (“Safety Act”). The Safety Act granted sole enforcement authority to the U.S. Department of Justice, state attorneys general, and boxers. See 15 U.S.C. § 6309 (“Enforcement”). The Ali Act left this enforcement regime essentially unchanged. 14 Likewise, as an alleged competitor, GBP does not suffer antitrust injury from reduced competition, which benefits all competitors by making supracompetitive pricing more attractive. Big Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096, 1102 (9th Cir. 1999) (competitor lacks antitrust injury to complain of price- fixing conspiracy which would benefit competitor). Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 24 of 32 Page ID #:4089 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Additionally, GBP’s alleged damages are not linked to the alleged anticompetitive conduct, requiring dismissal for another independent reason. As the Supreme Court held, “any model supporting a plaintiff’s damages case must be consistent with its liability case, particularly with respect to the alleged anticompetitive effect of the violation.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013); Am. Booksellers Ass’n, Inc. v. Barnes & Noble, Inc., 135 F. Supp. 2d 1031, 1041-42 (N.D. Cal. 2001) (granting summary judgment for defendant in antitrust case where plaintiff’s damages expert report did not square with real-world evidence nor establish causality). GBP’s theory in this case is that they have been, or will be, damaged in their promotion of Championship-Caliber Boxers only. (UF 197) Yet, the only evidence GBP offered regarding their alleged damages, the Report of Gene Deetz, claims lost profits damages for all types of boxers they promote, regardless of so-called Championship-Caliber or not. (See UFs 198 & 199) Because GBP’s damages model does not identify harm caused by the alleged anticompetitive conduct, it does not flow from their liability theory and therefore fails as a matter of law, requiring dismissal. See Comcast, 133 S. Ct. at 1433; see also Jensen Enter., Inc. v. Oldcastle Precast, Inc., 375 Fed. App’x 730, 732 (9th Cir. 2010) (dismissing antitrust claim where plaintiff could not establish that lost profits were due to anticompetitive conduct, and would have happened anyway). II. SUMMARY JUDGMENT IS APPROPRIATE ON THE CALIFORNIA UNFAIR PRACTICES ACT CLAIM GBP also claims the Haymon Entities network time buys violated the California Unfair Practices Act (“UPA”) during the Covered Period. To establish a UPA predatory pricing claim, GBP must show: (1) below-cost sales undertaken for the purpose of injuring competitors or destroying competition that (2) have resulted in a competitive injury. Bay Guardian Co. v. New Times Media LLC, 187 Cal. App. 4th 438, 454 (2010). GBP must establish that the Haymon Entities acted with the intention of injuring competitors or destroying competition. See, e.g., Sandler v. Gordon, 94 Cal. App. 2d 254, 258 (1949) (“The law prohibits, not all sales at less Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 25 of 32 Page ID #:4090 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT than cost, but only sales which are accompanied by the requisite intention or purpose—i.e., the purpose of injuring competitors or destroying competition. Unless the fact of intention is shown to have existed, the conclusion is that the sale did not constitute a violation of the statute.”); Bebe Au Lait, LLC v. Mothers Lounge, LLC, No. 5:13-cv-03035, 2014 WL 4744758, at *2 (N.D. Cal. Sept. 23, 2014) (requiring intent for § 17043 below-cost claim); Dooley’s Hardware Mart v. Food Giant Markets, Inc., 21 Cal App 3d 513, 516-17 (1971) (requiring intent for § 17044 loss leader claim). Here, GBP’s UPA claim fails for the fundamental reason that, as discussed above, it has no evidence that the Haymon Entities’ time buys were made with the intent to injure competition. See supra at Section I.A. Additionally, there is no evidence the Haymon Entities’ time buys on networks during the Covered Period caused any competitive injury. See supra at Section I.B.1; UF 132. GBP has no admissible evidence that any network refused to do business with GBP, or any other promoter, as a result of the Haymon Entities’ time buys. Dealers Wholesale Supply, Inc. v. Pacific Steel & Supply Co., No. C-81-3038-MHP, 1984 WL 775, at *5 (N.D. Cal. July 6, 1984) (granting summary judgment where there was no testimony from former customers “indicating that defendants’ [below-cost pricing] caused them to cease patronizing” the plaintiff’s business, and no statistics, expert analysis, or other evidence “linking defendants’ actions to [the plaintiff’s] lost sales.”); Rheumatology Diagnostics Lab. v. Aetna, Inc., No. 12-cv-05847, 2015 WL 1744330, at *13 (N.D. Cal. Apr. 15, 2015) (plaintiffs “offer[ed] no explanation as to why it is appropriate to assume that [defendant]’s capitated IPA contracts, whether below-cost or not, have deprived [plaintiff] of fee-for-service business. . . . [T]he mere fact that [defendant] offered the same services as [plaintiff], standing alone, does not establish a genuine dispute of material fact on causation.”) Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 26 of 32 Page ID #:4091 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT III. SUMMARY JUDGMENT ON GBP’S CALIFORNIA UCL CLAIM IS APPROPRIATE FOR MULTIPLE REASONS A claim under California’s Unfair Competition Law, Section 17200 et seq. (“UCL”), requires a plaintiff to establish an “unlawful,” “unfair,” or “fraudulent” business practice causing “injury in fact” and “lost money or property” to the plaintiff as a result of the unfair competition. In re Tobacco II Cases, 46 Cal.4th 298, 311 (2009). “A violation of another law is a predicate for stating a cause of action under” Section 17200’s unlawful prong. ChriMar Sys., Inc. v. Cisco Sys., Inc., 72 F. Supp. 3d 1012, 1020 (N.D. Cal. 2014) (quoting Berryman v. Merit Property Mgmt., Inc., 152 Cal. App. 4th 1544 (2007)); see Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180, 182-83 (1999) (“[S]ection 17200 ‘borrows’ violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.”). Because its antitrust claims fail, GBP cannot rely on the “unfair” prong for its 17200 claim. Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 186-187 (1999) (“unfair” means conduct that threatens incipient violation of antitrust law which has “some actual or threatened impact on competition”). Where the alleged conduct does not violate the antitrust laws, a claim based on unfair conduct under the UCL also cannot survive. See ChriMar Sys., Inc., 72 F. Supp. 3d at 1020; DocMagic, Inc. v. Ellie Mae, Inc., 745 F. Supp. 2d 1119, 1147 (N.D. Cal. 2010); Chavez v. Whirlpool Corp., 93 Cal. App. 4th 363, 375 (2001) (“If the same conduct is alleged to be both an antitrust violation and an ‘unfair’ business act or practice for the same reason—because it unreasonably restrains competition and harms consumers—the determination that the conduct is not an unreasonable restraint of trade necessarily implies that the conduct is not ‘unfair’ toward consumers.”) For the same reason, GBP cannot rely on its faulty Sherman Act claims to satisfy the “illegal” prong under 17200. Newson v. Countrywide Home Loans, Inc., No. C 09-5288 SBA, 2010 WL 2034769, at *8 (N.D. Cal. May 19, Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 27 of 32 Page ID #:4092 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 2010) (“Where a plaintiff cannot state a claim under the ‘borrowed’ law, he or she cannot state a UCL claim either.”) GBP seeks to rely on its alleged violations of the Ali Act (or similar state law counterparts) as a basis for its UCL claim, but this reliance is grossly misplaced. GBP focuses on the “conflict of interest” provision of the Ali Act, which states that “it is unlawful for a promoter to have a direct or indirect financial interest in the management of a boxer” or a manager “to have a direct or indirect financial interest in the promotion of a boxer.” 15 U.S.C. § 6308(b). According to GBP, the Haymon Entities are both a promoter and a manager in violation of the firewall provision because they provide the purse money to be paid to the boxer by the promoter and they are involved in the production of the PBC fights on television. (UF 201) This argument fails for a number of reasons. As an initial matter, GBP’s reliance on the Ali Act demonstrate the lengths of its hypocrisy. The conflict of interest provision was intended to prevent “the practice wherein a boxer is forced to hire a relative of a promoter as the boxer’s manager, which results in the boxer then having to surrender a third of all earnings in the ring to an individual associated with the promoter. . . . Boxers should not be forced into hiring unwanted management personnel.” (UF 202); S. Rep. No. 106- 83, at 8 (1999) (“Report of the Committee on Commerce, Science, and Transportation on S. 305, The Muhammad Ali Boxing Reform Act, June 21, 1999”) (emphasis added); see also Baglio, Scott, “The Muhammad Ali Boxing Reform Act: The First Jab at Establishing Credibility in Professional Boxing,” Fordham Law Review, 68(6), 2000, pp. 2257-2298 at 2270 (“Although boxers are the weaker parties in contract negotiations with promoters, they lose all bargaining power when they are not represented by a manager who bargains for their best interests.”) (citing Health and safety of professional boxing: hearings before the Committee on Commerce, Science, and Transportation, 103. Cong. 58 (1994) (statement of Eddy Futch, boxing trainer)). There is no evidence that boxers have been forced by a Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 28 of 32 Page ID #:4093 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT promoter into hiring Haymon Sports, LLC as their manager; to the contrary, GBP complains that Haymon Sports has too much control over the selection of the promoter. (UF 203) That is the real conflict of interest the Ali Act was intended to prevent; for GBP to bring a claim in equity under Section 17200 asserting the Haymon Entities are violating the Ali Act is a textbook case of unclean hands. See, e.g., Intamin, Ltd. v. Magnetar Techs. Corp., 623 F. Supp. 2d 1055, 1078 (C.D. Cal. 2009) (granting summary judgment based on unclean hands). Second, there is no evidence that any of the alleged actions by the Haymon Entities would somehow transform them into a promoter.15 The mere fact that the Haymon Entities provides the purse money or supplements the purse payments to the boxers does not make them the promoters, as GBP concedes. (UFs 204, 205 & 206) In fact, GBP admitted that it invoiced the Haymon Entities for purses when the parties worked together. (UF 205) GBP further admitted that it was not unusual for a manager to provide additional financial support beyond the purse amount to its boxers. (UF 206) GBP also admitted that being involved in the television production of a boxing event does not transform an entity into a promoter.16 (UF 208) During the 15 As explained in Alan Haymon’s concurrently filed Motion for Summary Judgment, GBP’s allegations that the promoters the Haymon Entities work with on PBC fights are “shams” is wholly unsupported. (See UFs 217-222) 16 In any event, with only two exceptions, the Haymon Entities agreed to waive all management fees from their boxers on the PBC Series (UF 207), so it would not even qualify as a “manager” as that term is defined in the Ali Act. 15 U.S.C. § 6301 Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 29 of 32 Page ID #:4094 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Covered Period, Moreover, a number of successful managers have negotiated with networks like HBO for production of fights involving their boxers. (UF 209) More generally, Oscar De La Hoya admitted there is nothing wrong with a manager trying to get his boxers as much money and exposure on television as possible. (UF 210) For GBP to claim otherwise now is the height of hypocrisy. Third, GBP cannot establish injury in fact as a result of the alleged violation of the Ali Act, which is necessary for it to have standing to pursue a claim under Section 17200. Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011). In Kwikset, the California Supreme Court held that the “injury in fact” requirement for Section 17200 incorporates the federal standing requirement of injury in fact. Id. at 323. “Under federal law, injury in fact is ‘an invasion of a legally protected interest which is (a) concrete and particularized; and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id. at 323 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992))) (citations omitted)). This requires a showing of economic injury as a result of the alleged violation. Kwikset, 51 Cal.4th at 323-326. Here, GBP has not identified any economic injury proximately caused as a result of an alleged violation of the Ali Act. See supra at Section I.C. Nor can GBP establish the invasion of “a legally protected interest” for purposes of “injury in fact” because the Ali Act was enacted to protect boxers from coercive contracts with promoters, (“manager” defined as someone who receives compensation for service as an agent or representative of the boxer). Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 30 of 32 Page ID #:4095 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -24- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT such as GBP’s, which give GBP control over the boxer’s choice of manager. (See UFs 194, 195 & 202) The reality is that the Haymon Entities are fulfilling the goals of the Ali Act by providing its boxers with needed leverage when negotiating with promoters and advising them not to sign the type of one-sided, long term promotional contracts that were targeted by the Ali Act (and still being used by GBP). (UF 86) GBP’s assertion that it is a violation of the Ali Act for the Haymon Entities to provide their boxers with financial support by supplementing purses or trying to get them exposure on television makes a mockery of the Ali Act. Summary judgment of GBP’s Section 17200 should be granted as well.17 17 Furthermore, Mr. Hopkins’ UCL claim against the Haymon Entities fails for the additional reason that he does not have standing to sue. When he was deposed, Mr. Hopkins admitted that (a) he is not a boxing promoter, he is just a minority interest holder in one (UF 211); (b) he is not a boxing manager (UF 212); (c) Haymon has never managed or advised him (UF 213); and (d) the last fight from which he believes he was “tied-out” was in 2014 (UF 214) (before the Covered Period). Nor does Mr. Hopkins have any independent basis for asserting antitrust claims against the Haymon Entities as a minority owner of GBP. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 31 of 32 Page ID #:4096 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -25- Case No. 2:15-cv-3378-JFW-MRW THE HAYMON ENTITIES’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT CONCLUSION For the foregoing reasons, Defendants the Haymon Entities respectfully request that this Court grant summary judgment of all claims asserted in this action. DATED: October 31, 2016 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN, LLP By/s/ Michael E. Williams Michael E. Williams Attorneys for Defendants Haymon Boxing LLC, Haymon Sports LLC, Haymon Boxing Management, and Haymon Holdings LLC KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) hweitzman@kwikalaw.com Jeremiah T. Reynolds (SBN 223554) jreynolds@kwikalaw.com 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 Telephone: 310.566.9800 Facsimile: 310.566.9850 Attorneys for Defendant Alan Haymon Development, Inc. Case 2:15-cv-03378-JFW-MRW Document 158 Filed 10/31/16 Page 32 of 32 Page ID #:4097 1                             Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW QUINN EMANUEL URQUHART & SULLIVAN, LLP John B. Quinn (SBN 90378) johnquinn@quinnemanuel.com Michael E. Williams (SBN 108542) michaelwilliams@quinnemanuel.com Adam B. Wolfson (SBN 262125) adamwolfson@quinnemanuel.com 865 S. Figueroa St., 10th Floor Los Angeles, California 90017 Telephone: 213.443.3000 Facsimile: 213.443.3100 Attorneys for Defendants Haymon Boxing LLC, Haymon Sports LLC, Haymon Boxing Management, and Haymon Holdings LLC [additional counsel located on signature page] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION GOLDEN BOY PROMOTIONS, LLC, et al., Plaintiffs, v. ALAN HAYMON, et al., Defendants. Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS ALAN HAYMON DEVELOPMENT, INC., HAYMON BOXING LLC, HAYMON BOXING MANAGEMENT, HAYMON HOLDINGS LLC, AND HAYMON SPORTS LLC’S STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Judge: Hon. John F. Walter Hearing Date: November 28, 2016 Time: 1:30 P.M. Place: Courtroom No. 16 Filing Date: May 5, 2015 Trial Date: March 14, 2017 REDACTED VERSION OF DOCUMENT FILED PARTIALLY UNDER SEAL PURSUANT TO ORDER OF THE COURT DATED OCTOBER 28, 2016 (DKT 141) Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 1 of 44 Page ID #:4098 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -0- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Pursuant to Local Rule 56-1, Defendants Haymon Boxing LLC, Haymon Sports LLC, Haymon Boxing Management, Haymon Holdings LLC, and Alan Haymon Development, Inc. (collectively, the “Haymon Entities”) submit the following Statement of Undisputed Facts and Conclusions of Law in support of their Motion for Summary Judgment.1 I. UNDISPUTED FACTS Uncontroverted Fact (“UF”) Evidentiary Support 72. In 2010, Oscar De La Hoya was quoted as saying that “The Don Kings and Bob Arums have had a chokehold on [boxing] for the last 40 years . . . Now, we have to think outside the box; we have to think like the NBA and MLB and have one commission and one major promoter in the sport. That’s one of the reasons I commend UFC for what they have done in such a short period of time; they are the only real player in their category, the mixed martial arts word. They have been able to organize themselves, have all the TV dates, a pay-per-view every months; that’s why they are valued at more than $1 billion. They are doing the right thing, and it’s time for boxing to do the right thing, as long as we don’t have those obstacles named Don King and Bob Arum. . . . But our ultimate goal is to [also] have boxing on free tv, on the ABCs, CBSs and NBCs of the world.” Ex. 26 (Broadcasting & Cable article titled “Oscar De La Hoya’s New Fight,” dated September 27, 2010). 1 Unless otherwise noted, all exhibit (“Ex.”) references are to the Declaration of Michael E. Williams filed in support of Defendants Haymon Boxing LLC, Haymon Sports LLC, Haymon Boxing Management, Haymon Holdings LLC, and Alan Haymon Development, Inc.’s Motion for Summary Judgment. Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 2 of 44 Page ID #:4099 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 73. In 2011, Bob Arum, speaking about his proposed partnership with CBS to show boxing on that network, said “If this works to bring boxing back to network television this will be one of the crowning achievements of my career, because it will help all of boxing.” Declaration of Steve Farhood dated October 31, 2016 (“Farhood Decl.”) ¶ 7 74. For boxing to have the success in America that other major sports enjoy, there must be meaningful network television of boxing. Farhood Decl. ¶¶ 3-7 Ex. 12-A (Deposition of Gary Shaw taken by Defendants on October 20, 2016 (“Shaw Dep.”)) 153:13-154:23 75. Although boxing regularly appeared on free network television up through the 1980s, it all but disappeared on free network and basic cable television until 2015. Farhood Decl. ¶¶ 3-6 76. Boxing’s popularity has declined since the 1970s and 1980s for a variety of reasons, including that the TV distribution model changed (from free televised bouts to largely premium cable and PPV bouts), it has an aging fan base, and there was significant corruption in the sport that made major networks such as ABC, NBC, and CBS unwilling to pay significant license fees to broadcast boxing. Farhood Decl. ¶ 4 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 3 of 44 Page ID #:4100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 77. Pay-per-view boxing events (which typically include the highest-profile bouts) have made Showtime and HBO significant amounts of money, but they have also made boxing an expensive sport to follow, and made developing the next generation of stars more difficult. Farhood Decl. ¶¶ 5-6 Ex. 12-A (Shaw Dep.) 147:1-14; 150:18-152:24 78. Over the past three decades, boxing has steadily declined in popularity relative to the professional sports leagues (like the NFL, NBA, and MLB), as well as to rival combat sports like MMA. Farhood Decl. ¶ 6 79. Plaintiff Bernard Hopkins, a boxer who has obtained multiple championship belts from the 1980s through the 2000s, believes that, in order for boxing to survive and possibly grow as a sport, it needed to return to network television where millions of Americans could have free access to it. Ex. 9-A (Deposition of Bernard Hopkins taken by Defendants on October 6, 2016 (“Hopkins Dep.”) 134:10-136:13 80. In approximately 2001, Al Haymon took on his first client as a boxing manager. Declaration of Alan Haymon. dated October 31, 2016 (“Haymon Decl.”) ¶ 4 81. Before becoming a boxing manager, Al Haymon had a background in the music and television industries. Haymon Decl. ¶ 3 82. Al Haymon believed that boxers were vulnerable to exploitation by powerful promoters. Haymon Decl. ¶ 5 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 4 of 44 Page ID #:4101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 83. In 2013, Haymon founded Haymon Sports to provide management services to boxers. Haymon Decl. ¶ 1 84. Prior to the formation of Haymon Sports, Al Haymon provided boxing management services through Alan Haymon Development, Inc. (“AHD”). Haymon Decl. ¶ 2 85. Haymon Sports, like its predecessor AHD, sought to provide boxers— whose careers are very short and who risk so much inside the ring—more leverage when negotiating with promoters. Haymon Decl. ¶ 6 86. Haymon Sports, like AHD, commonly advises his management clients to avoid one-sided, long-term promotional agreements because Haymon Sports felt that such agreements only benefitted the promoter. Haymon Decl. ¶ 7 87. Haymon Sports, like AHD did, takes a smaller percentage in management commissions (10-15%, compared to the prevailing rate of 33%) and often contracts that it will only takes a commission after the boxer’s purse reaches a negotiated floor, often as high as $100,000. Haymon Decl. ¶ 9 88. Haymon Sports managed or advised over one hundred fighters by 2013. Haymon Decl. ¶ 10 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 5 of 44 Page ID #:4102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 89. Haymon Sports has managed or advised, among others, Floyd Mayweather, Jr., the world’s highest- paid athlete in 2014 and 2015; Amir Khan; and current welterweight champions Danny Garcia and Keith Thurman. Haymon Decl. ¶ 10 90. Haymon Sports has worked with promoters across the industry (including GBP, Top Rank, Dibella Entertainment, and others) to secure high-paid bouts and title fights. Haymon Decl. ¶ 10 91. The Haymon Entities sought to attract audiences to boxing, to demonstrate to television networks that airing boxing was a viable business strategy. Haymon Decl. ¶¶ 11-14 92. On March 7, 2015, the Haymon Entities launched the PBC series with its first broadcast. Haymon Decl. ¶ 18 93. The PBC was an attempt to bring boxing back to free television and reversed the long-term trend of declining interest in the sport. Haymon Decl. ¶ 12 94. The PBC has televised over 80 boxing shows since the beginning of 2015, with a combined audience in excess of 100 million US viewers. Haymon Decl. ¶ 18 95. The PBC has given sports fans the chance to watch some of the best fighters in the sport without having to pay for premium cable subscriptions or buy individual PPV broadcasts. Haymon Decl. ¶ 18 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 6 of 44 Page ID #:4103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 96. The output of boxing on television has grown substantially since the beginning of the PBC; the Nielsen data reflect a 25 percent increase, from 267 to 334, in televised boxing matches from 2014 to 2015. Viewing audiences have more broadcasts of boxing events available at lower prices; broadcast networks receive greater benefits from increased airing of live sporting events; and boxers benefit from greater exposure and larger purses. Declaration of Duncan J. Cameron, Ph.D. dated October 31, 2016 (“Cameron Decl.”) ¶ 2. 97. More than a third of boxers who have competed in the PBC are not managed or advised by Haymon Sports. Haymon Decl. ¶ 18 98. Boxers who have competed in the PBC earned larger purses and greater public exposure than otherwise would have been possible. Ex. 3-A (Deposition of Roberto Diaz taken by Defendants on September 28, 2016 (“Diaz Dep.”) 77:20-81:1; 257:9-258:11 Haymon Decl. ¶ 18 99. Several different entities have tried to get boxing back on network television, but the networks were unwilling to pay license fees in amounts that would have made those efforts profitable. Ex. 5-A (Deposition of Robert Kneuper taken by Defendants on October 21, 2016 (“Kneuper Dep.”)) 168:6-170:233:3-24; 188:11-189:16; 191:24-194:6; 337:12-338:11 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 7 of 44 Page ID #:4104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 100. Because the networks were unwilling to provide license fees to air boxing programming, the Haymon Entities decided to take on the risk of investing substantial sums to purchase air time on those networks with the goals of (a) demonstrating that boxing was viable on network TV and (b) helping revitalize fan interest as a result. Ex. 1-A (Deposition of Alan Haymon taken by Plaintiffs on September 20, 2016 (“Haymon Dep.”)) 214:7- 216:12; 220:6-221:12 Ex. 8-A (Deposition of Michael Ring taken by Plaintiffs on September 30, 2016 (“Ring Dep.”)) 201:9-18 101. The Haymon Entities intended, after proving that boxing could generate profits on network television, to return to the networks with a renewed proposal that they pay a license fee. Haymon Decl. ¶ 14 102. The ultimate goal of the PBC was to create a major sports property that could sustain and grow the sport through substantial television license fees (similar to the NHL, NASCAR, Major League Soccer, and the UFC). Ex. 1-A (Haymon Dep.) 173:1- 174:10 Ex. 8-A (Ring Dep.) 101:24-102:22. 103. GBP has alleged violations of the Sherman Act, California’s Unfair Practices Act (“UPA”) and California’s Unfair Competition Law (“UCL”) against the Haymon Entities and Alan Haymon individually. Ex. 17 (Second Amended Complaint for Sherman Act Violations, Unfair Practices Act Violations and Unfair Competition (Dkt. No. 95) (“SAC”)) ¶¶ 103-137. Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 8 of 44 Page ID #:4105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 104. Prior to the filing of this action, Alan Haymon Development, Inc., Haymon Properties, LLC, Haymon Holdings, LLC, Haymon Sports, LLC, Richard Schaefer, Golden Boy Boxing, LLC, Golden Boy Boxing Holdings, LLC, Golden Boy Enterprises, LLC, Oscar De La Hoya, and Oscar De La Hoya Separate Property Trust mediated various disputes and entered into a Settlement and Release Agreement (the “Settlement Agreement”), executed on December 19, 2014. Ex. 16 (Settlement Agreement) See also Golden Boy Promotions LLC v. Alan Haymon, No. CV 15- 3378-JFW (MRWx) (C.D. Cal. August 18, 2015) (ECF 64, Order on Motion to Stay). 105. As a result of the Settlement Agreement, GBP’s allegations in this action are expressly limited to events occurring on or after January 1, 2015, referred to in the Second Amended Complaint as the “Covered Period.” Ex. 16 (Settlement Agreement) § 4.3 Ex. 17 (SAC) ¶ 11 106. Pursuant to the terms of the Settlement Agreement, the Haymon Entities made a payment to GBP of in January 2015 in order to terminate their obligations under the Settlement Agreement to continue working with GBP with respect to certain boxers managed by Haymon Sports. Golden Boy Promotions LLC v. Alan Haymon, C.D. Cal. CV 15-3378-JFW (MRWx), Order on Motion to Stay, filed August 18, 2015 (Dkt. 64) Ex. 6-A (Deposition of Julio Ramirez taken by Plaintiffs on October 28, 2016 (“Ramirez Dep.”)) 131:10-15 Ex. 16 (Settlement Agreement) 107. GBP alleges that the Haymon Entities entered “long term exclusive agreements with nearly all major sports broadcasters in the United States,” and that these agreements constitute anticompetitive behavior. Ex. 17 (SAC) ¶¶ 103(D), (F) Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 9 of 44 Page ID #:4106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 108. The SAC asserts that the Haymon Entities engaged in a scheme of refusing to deal with so called ‘legitimate’ promoters. Ex. 17 (SAC) ¶¶ 103(B, C, G, H) 109. The SAC asserts that the Haymon Entities engaged in venue blocking, “‘lock[ing] up’ desirable dates for bouts featuring Championship-Caliber Boxers in major arenas, . . . to render Golden Boy and other legitimate promoters unable to arrange attractive and profitable bouts for their Championship-Caliber Boxers at such arenas.” Ex. 17 (SAC) ¶¶ 82, 103(D, E) 110. The SAC asserts that the Haymon Entities engaged in multiple violations of the Muhammad Ali Boxing Reform Act (the “Ali Act”) as both a manager and a promoter, including by taking a financial interest in the promotion of a boxer, failing to provide the required disclosures to boxers or boxing commissions, and by receiving the proceeds of numerous bouts without such compliance. Ex. 17 (SAC) ¶ 131 111. Ex. 19 ( )) 112. Ex. 18 (Expert Report of Gene Deetz dated September 6, 2016 (“Deetz Report”)) at Deetz Report Appendix V Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 10 of 44 Page ID #:4107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 113. Ex. 3-A (Diaz Dep.) 224:19-226:14 Ex. 6-A (Ramirez Dep.) 116:22- 117:19, 119:24-120:11, 128:25- 129:14, 134:13-135:11 Ex. 30 ( 114. Ex. 6-A (Ramirez Dep.) 129:24- 130:20 115. Ex. 6-A (Ramirez Dep.) 41:10-24 Ex. 14-A (Deposition of Oscar De La Hoya taken by Defendants on September 23, 2016 (“De La Hoya Dep.”) 68:17-20 116. . Ex. 6-A (Ramirez Dep.) 72:7-76:1 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 11 of 44 Page ID #:4108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 117. Ex. 6-A (Ramirez Dep.) 96:10-99:15 Ex. 7 (Plaintiffs’ Supplemental Responses to Defendant Haymon Sports, LLC’s First Set of Interrogatories) at 86-88 (Response to Interrogatory No. 14) 118. 119. Ex. 1-A (Haymon Dep.) 221:24- 223:15 120. . Ex. 8-A (Ring Dep.) 116:21-24 121. Other than Haymon Sports, LLC’s agreements with , Haymon Entities’ other television agreements were entered into prior to January 1, 2015, which is before the Covered Period. Ex. 10 (Expert Report of Robert Kneuper dated September 6, 2016 (“Kneuper Report”)) at Kneuper Report Exhibit 6 122. The Haymon Entities never had or sought exclusive agreements with HBO, Showtime, or PPV for the PBC. Haymon Decl. ¶ 16 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 12 of 44 Page ID #:4109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 123. In May 2016, Haymon Sports, LLC waived the exclusivity provisions in the TV Agreements. Ex. 1-A (Haymon Dep.) 191:13- 192:9 Ex. 8-A (Ring Dep.) 113:15-114:5 124. HBO and Showtime have been the primary and most profitable distribution channels used by GBP and other promoters in recent history. Ex. 2-A Deposition of Eric Gomez taken by Defendants on September 22, 2016 (“Gomez Dep.”) 298:6:10 Ex. 3-A (Diaz Dep.) 160:22-162:25 and 249:18-250:25 Ex. 6-A (Ramirez Dep.) 107:20- 108:13 Ex. 9-A (Hopkins Dep.) 145:19- 146:7 (“H.B.O. is, as they say, the 500 pound gorilla in the building, which pays more than anybody…”); 125. 126. 127. ” Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 13 of 44 Page ID #:4110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 128. 129. 130. ” 131. Spanish 132. Ex. 2-A (Gomez Dep.) 280:13- 281:13; 284:7-285:19; 303:4-308:17 Ex. 14-A (Deposition of Oscar De La Hoya taken by Defendants on September 23, 2016 (“De La Hoya Dep.”) 105:11-20; 230:15-232:3 133. GBP could not recall the last event it promoted on ESPN, but testified that it was somewhere between two and ten years ago, or at least one year prior to the Covered Period. Ex. 2-A (Gomez Dep.) 284:7-285:19 Ex. 14-A (De La Hoya Dep.) 105:11- 20 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 14 of 44 Page ID #:4111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 134. Ex. 2-A (Gomez Dep.) 303:4-308:17 Ex. 14-A (De La Hoya Dep.) 230:15- 231:8 135. Ex. 2-A (Gomez Dep.) 280:13- 281:13. 136. Prior to airing PBC bouts, networks like SpikeTV, NBC, CBS and ABC had not broadcast boxing in primetime in many years. Ex. 1-A (Haymon Dep.) 220:6- 221:12 137. GBP alleges that the Haymon Entities engaged in anticompetitive conduct through its refusal to allow any Haymon-managed “Championship Caliber Boxer” to enter into a promotional contract during the Covered Period with “Golden Boy, Top Rank, Main Events, or any other legitimate promoter.” Ex. 17 (SAC) ¶ 104(B) 138. The Haymon Entities were willing to work with GBP (and any other promoter) so long as the terms were in what the Haymon Entities believed were the boxers’ best interest. Ex. 1-A (Haymon Dep.) 68:20-70:24 139. On May 7, 2016, Saul “Canelo” Alvarez fought Amir Khan at T- Mobile Arena in Las Vegas, Nevada. Ex. 2-A (Gomez Dep.) 361:21-23, 364:23-365:4 Ex. 28 (Canelo v. Khan (GBP068167-68)) 140. GBP was the lead promoter for the Alvarez-Khan fight. Ex. 1-A (Haymon Dep.) 119:15-21 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 15 of 44 Page ID #:4112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 141. At the time of the Alvarez-Khan fight, Khan was managed by Haymon Sports LLC. Ex. 2-A (Gomez Dep.) 361:21-362:2 142. The Alvarez-Khan fight generated revenue of Ex. 28 (Canelo v. Khan (GBP068167-68)) 143. Amir Khan received a total payment from the Alvarez-Khan fight of Ex. 2-A (Gomez Dep.) 365:24-366:1 Ex. 28 (Canelo v. Khan (GBP068167-68)) 144. Ex. 2-A (Gomez Dep.) 366:2-5 Ex. 28 (Canelo v. Khan (GBP068167-68)) 145. . Ex. 28 (Canelo v. Khan (GBP068167-68)) 146. Alvarez-Khan fight is, to date, GBP’s most profitable fight of 2016. Ex. 2-A (Gomez Dep.) 315:3-10 147. Oscar De La Hoya called the 2015 fight between Manny Pacquiao and Floyd Mayweather, Jr. the biggest fight in boxing history. Ex. 14-A (De La Hoya Dep.) 213:18- 214:1 (testifying that Mayweather v. Pacquiao was the biggest fight in boxing history) 148. At the time of the 2015 fight between Manny Pacquiao and Floyd Mayweather, Jr., Manny Pacquiao was promoted by Top Rank. Ex. 14-A (De La Hoya Dep.) 226:7-9 149. At the time of the 2015 fight between Manny Pacquiao and Floyd Mayweather, Jr., Floyd Mayweather, Jr. was advised by Haymon Sports, LLC. Ex. 1-A (Haymon Dep.) 129:3-20 (Mayweather was a “Haymon fighter” at the time of the Mayweather-Pacquiao fight). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 16 of 44 Page ID #:4113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 150. There were a number of other fights between Haymon-managed boxers and boxers promoted by GBP, Top Rank and other promoters during the Covered Period. Cameron Decl. ¶ 5. 151. Promotional contracts, as opposed to management contracts, have a much higher likelihood of harming a boxer’s career, because the boxer is unable to fight if there is friction between the promoter and the boxer. Muhammad Ali Boxing Reform Act, Pub.L. 106-210, Section 2 Scott Baglio, The Muhammad Ali Boxing Reform Act: The First Jab at Establishing Credibility in Professional Boxing, 68 Fordham L. Rev. 2257, 2264 (2000) (“[V]ictories inside the ring can be meaningless if the promoter does not supply the boxer with frequent bouts against respected competition.”) 152. Ex. 2-A (Gomez Dep.) 148:4-149:6 Ex. 21 (Term Sheet, executed October 21, 2010 (GBP003276-84) (“October 21, 2010 Term Sheet”)) 153. Ex. 2-A (Gomez Dep.) 139:23- 145:11 Ex. 21 (October 21, 2010 Term Sheet) 154. GBP’s standard long-term promotional contracts include “Guaranteed Minimum Purse Amounts,” meaning that in no event will the boxer’s purse be less than a specified amount for certain fights. Ex. 21 (October 21, 2010 Term Sheet) at GBP003276-77 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 17 of 44 Page ID #:4114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 155. In GBP’s standard long-term promotional contracts, the “Guaranteed Minimum Purse Amounts” for each fight no longer apply if the boxer loses a fight. Ex. 2-A (Gomez Dep.) 139:17- 140:25 Ex. 21 (October 21, 2010 Term Sheet) at GBP003277 156. In 2012, Golden Boy Promotions, Inc. and Golden Boy Promotions, LLC were sued by boxer James Kirkland, who sought a declaratory judgment finding that the promotion agreement and extension agreement he signed with Golden Boy Promotions, Inc. were invalid and unenforceable as contrary to public policy and in violation of Nevada and California law. Kirkland v. Golden Boy Promotions, No. 12-cv-07071 (C.D. Cal. August 16, 2012) (ECF 1, Complaint). 157. On June 24, 2013, Judge Morrow of the Central District of California granted James Kirkland’s motion for judgment on the pleadings, finding that the promotion agreement between him and the Golden Boy entities, as well as an extension agreement they signed, were void for illegality to the extent they “form[ed] a contract [between a boxer and promoter] for a period exceeding five years,” in violation of California law. Kirkland v. Golden Boy Promotions, No. 12-cv-07071 (C.D. Cal. June 24, 2013) (ECF 38, Order Granting in Part the Plaintiff’s Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment) (the “Kirkland Order”). 158. After the Kirkland Order, GBP changed its promotional agreements to be governed by Nevada law, which does not have the same durational limitation on boxer –promoter contracts. Ex. 2-A (Gomez Dep.) 153: 9-22; 178:12-23 Compare Ex. 21 (October 21, 2010 Term Sheet) at § 12 (California Choice-of-Law Provision) with Ex. 22 (Term Sheet, executed September 17, 2014(GBP007761-74)) § 11 (Nevada Choice-of-Law provision). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 18 of 44 Page ID #:4115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 159. GBP’s standard promotional agreements are automatically extended should the boxer meet certain specified achievements, such as becoming a party to an agreement with a media network. Ex. 2-A (Gomez Dep.) 149:12-151:2 Ex. 21 (October 21, 2010 Term Sheet) at § 8 (“Extension/ Termination”) 160. After GBP’s standard promotional agreement with a boxer expires, GBP has a right of last refusal, allowing it the opportunity to match any offer the boxer receives from another promoter. Ex. 2-A (Gomez Dep.) 176:9-22 Ex. 21 (October 21, 2010 Term Sheet) at § 9 (“First Negotiation and Last Refusal”) 161. In 2000, Oscar De La Hoya, successfully sued his promoter, Top Rank, to void his promotional agreement and was granted summary judgment on his claim. De La Hoya v. Top Rank, No. 00-cv- 09230-WMB-RNB, 2001 WL 34624886, at *16 (C.D. Cal. Feb. 6, 2001). 162. anager of then Golden Boy Ex. 4 (May 21, 2015 email from Robert Diaz to manager of GB0012068) 163. Ex. 3-A (Diaz Dep.) 122:19-21; 124:25-125:14 164. Eric Gomez, GBP’s President, admitted that it is common practice in the industry to put a hold on multiple venues while negotiating for the best locale. Ex. 2-A (Gomez Dep.) 402:23-404:2 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 19 of 44 Page ID #:4116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 165. Eric Gomez, GBP’s President, has publicly stated that he typically places multiple holds for a single fight. Ex. 2-A (Gomez Dep.) 408:1-409:17 Ex. 32 (ESPN.com article titled “Canelo’s next fight: Date set, but opponent, site both up in air,” dated January 5, 2016) 166. GBP identifies the Matthysse v. Provodnikov fight, held on April 18, 2015, as a fight it wanted to hold at a “foreclosed arena”—the Stub Hub Center in Carson, California. Ex. 17 (SAC) ¶ 82 167. GBP alleges it was “forced to book the [Matthysse v. Provodnikov] fight at an arena in New York, only to discover later that the Haymon Defendants had subsequently cancelled their holds on the Stub Hub Center for the dates requested.” Ex. 17 (SAC) ¶ 82 168. Eric Gomez, GBP’s President, testified that he was told by another employee that she was told the Stub Hub Center had been reserved by another promoter (not any of the Haymon Entities) for the night GBP wanted to hold a fight there. Ex. 2-A (Gomez Dep.) 414:11- 415:11 169. On April 18, 2015, Julio Cesar Chavez Jr. fought Andrzej Fonfara at the Stub Hub Center . Ex. 3-A (Diaz Dep.) 217:18-25 Ex. 29 (“Showtime Boxing Presents: Julio Cesar Chavez Jr. vs. Andrzej Fonfara”) 170. The Chavez-Fonfara fight was part of the Showtime Championship Boxing series, and was not a PBC event. Haymon Decl. ¶ 15 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 20 of 44 Page ID #:4117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 171. GBP’s April 18, 2015 fight at a New York venue was very profitable for GBP and was voted the Fight of the Year. Ex. 14-A (De La Hoya Dep.)153:13- 154:20 Ex. 27 (E-Mail to Oscar De La Hoya and Eric Gomez From Mark Taffet, Dated April 21, 2015 (GBP017423)) See also Ex. 2-A (Gomez Dep.) 421:9-422:5 (“It ended up being fight of the year.”). 172. GBP’s Matthysse v. Provodnikov television ratings exceeded the Chavez Jr. fight at the Stub Hub Center . Ex. 14-A (De La Hoya Dep.)153:13- 154:23; 158:13-160:9 Ex. 27 (E-Mail to Oscar De La Hoya and Eric Gomez From Mark Taffet, Dated April 21, 2015 (GBP017423)) 173. The promoter TGB Promotions negotiated and signed the venue agreement for the Chavez, Jr. fight held on April 18, 2015. Declaration of Tom Brown (“Brown. Decl.”) ¶ 16 174. GBP principals, Eric Gomez and Roberto Diaz, admit there are numerous alternative venues to the Stub Hub Center in the greater Los Angeles area to hold boxing fights. Ex. 2-A (Gomez Dep.) 422:15-24 Ex. 3-A (Diaz Dep.) 219:7-13 175. GBP principals, Eric Gomez and Roberto Diaz, admit they have no evidence Haymon Sports, LLC put holds on any of the other venues in the greater Los Angeles area on any dates GBP wanted to host a specific bout. Ex. 2-A (Gomez Dep.) 422:25-423:7 Ex. 3-A (Diaz Dep.) 219:14-25 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 21 of 44 Page ID #:4118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 176. GBP alleges that the Haymon Entities incurred “temporary losses estimated in the hundreds of millions of dollars” through time buys on network television “to exclude plaintiffs and other legitimate promoters from competing in that essential part of the business . . .” and that once it achieves monopoly power, it will “recoup their losses and reap massive profits, far in excess of their temporary losses, by paying less to boxers and charging supracompetitive prices to networks, sponsors and consumers.” Ex. 17 (SAC) ¶ 75 177. The Haymon Entities’ time buys on television networks have been on broadcast and non-premium cable networks that had not shown any Golden Boy bouts at all prior to the launch of the PBC. Ex. 12-A (Shaw Dep.) 151:22-152:24 Ex. 14-A (De La Hoya Dep.) 230:18- 231:8. 178. Other networks that were showing boxing only infrequently showed boxing fights. Ex. 12-A (Shaw Dep.) 151:22-152:24 179. GBP had an exclusive deal on HBO Latino before the PBC was ever created. Haymon Decl. ¶ 17 180. In late 2013 or early 2014, the Haymon Entities approached NBC with a proposal that NBC pay a rights fee to air boxing on its network. Ex. 1-A (Haymon Dep.) 185:22- 186:1 181. NBC laughed at the Haymon Entities’ original proposal that NBC pay a license fee for boxing programming on its network. Ex. 1-A (Haymon Dep.) 184:24- 185:8 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 22 of 44 Page ID #:4119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 182. No Haymon Entity made any time buys on HBO, Showtime or PPV events, the dominant networks used by promoters such as GBP and Top Rank. Cameron Decl. ¶ 4 Ex. 10 (Kneuper Report) at Kneuper Report Exhibit 6 183. While his report states that Haymon will engage in recoupment, GBP’s proffered economic expert, Robert Kneuper, Ph.D., testified that he did not perform a recoupment analysis and does not know how that could happen with the Haymon Entities. Ex. 5-A (Kneuper Dep.) 47:8-19; 58:9-60:21; 61:19-62:10 184. Dr. Kneuper states that “Haymon will likely be forced to significantly reduce televised boxing events and engage in actions enabling it to recoup the substantial losses it has incurred.” Ex. 10 (Kneuper Report) ¶ 17 185. Dr. Kneuper states that “the available evidence indicates Haymon ‘free tv’ growth strategy has not achieved the success that Haymon had hoped for and that Haymon has lost substantially more money than the hundreds of millions of dollars he anticipated when forming this risky business venture.” Ex. 5-A (Kneuper Dep.) 59:12-60:15 Ex. 10 (Kneuper Report) ¶ 17 186. According to Eric Gomez, GBP’s President, “[t]he market became very competitive” approximately two and a half years ago, in part because of the PBC. Ex. 2-A (Gomez Dep.) 47:25-48:20 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 23 of 44 Page ID #:4120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 187. Plaintiff Bernard Hopkins testified that he believed PBC would “bring boxing in [sic.] the forefront, primetime. To me, whether we was [sic.] doing it or somebody else was doing it, it was just a good thing.[…] I thought it was good for the fighters. Yea, boxers. I thought it was good for the fans, and they get the – a chance to actually watch the next superstar.” Ex. 9-A (Hopkins Dep.) 134:14- 136:13 188. GBP’s proffered economic expert, Dr. Kneuper, concedes “there has been a growth in U.S.-televised boxing events during 2015 and 2016.” Ex. 10 (Kneuper Report) ¶ 17 189. Prior to the launch of the PBC, boxing events were only available on a few networks, most of which were premium cable networks (HBO and Showtime) or PPV events. Ex. 12-A (Shaw Dep.) 146:20-25; 151:22-152:6 190. Since January 2015, the Haymon Entities have made boxing events available on free network television, including CBS, NBC, Fox and Bounce, as well as other cable networks (Spike TV, ESPN, and FS1), re-introducing boxing to millions of Americans through more widely-available (and widely- watched) broadcast and cable networks. Cameron Decl. ¶ 3 Haymon Decl. ¶ 18 Ex. 10 (Kneuper Report) at Kneuper Report Exhibit 7 191. GBP testified that the Haymon Entities’ actions have benefited boxers by lowering management fees and raising purse amounts. Ex. 3-A (Diaz Dep.) 78:21-80:7 Ex. 12-A (Shaw Dep.) 193:21- 194:17; 220:4-14. Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 24 of 44 Page ID #:4121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 192. Golden Boy’s own proffered economic expert admitted that lower prices and increased output were factors that would be considered in determining whether conduct is procompetitive. Ex. 5-A (Kneuper Dep.) 157:11-16. 193. GBP alleges that the Haymon Entities are acting as both a manager and promoter of boxers in violation of the Ali Act “so as to limit competition and gain an unfair advantage over legitimate promoters . . . .” Ex. 17 (SAC) ¶ 103(A) 194. The express purpose of the Ali Act is (among other things) “to protect the rights and welfare of professional boxers . . . by preventing certain exploitive, oppressive, and unethical business practices.” Muhammad Ali Boxing Reform Act, Pub.L. 106-210, Sec. 3 (“Purposes”) 195. The Ali Act was enacted because “of the restrictive and anticompetitive business practices of certain promoters and sanctioning bodies, to the detriment of the athletes and the ticket-buying public.” Muhammad Ali Boxing Reform Act Sec. 2 (“Findings”) 196. The only parties that have standing to assert a violation of the Ali Act are boxers who are harmed by the anticompetitive practices of promoters or federal and state government agencies See 15 U.S.C. § 6309 (“Enforcement”). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 25 of 44 Page ID #:4122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -24- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 197. Plaintiffs’ theory in this case is that they have been, or will be, damaged in their promotion of Championship- Caliber Boxers only. They have not alleged or offered any economic evidence that non-Championship- Caliber Boxers markets were also harmed. See Ex. 17 (SAC) ¶¶ 102-114 198. The only evidence Plaintiffs have offered regarding their alleged damages is the Report of Gene Deetz. Ex. 18 (Deetz Report) 199. The proffered damages analysis of Gene Deetz assess profits and losses from the promotion of Championship- Caliber Boxers and non- Championship-Caliber Boxers. See Ex. 18 (Deetz Report) at Deetz Report Exhibit 3 See also Ex. 15 (Deposition of Michael Smith taken by Defendants on September 26, 2016) 62:14-64:11 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 26 of 44 Page ID #:4123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -25- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 200. The Haymon Entities are not alleged to have market power in any non- Championship-Caliber Boxers markets. Ex. 17 (SAC) ¶ 30 Ex. 10 (Kneuper Report) ¶ 11 (“I have been asked to evaluate whether Defendants have market power in a relevant U.S. market for managing Championship-Caliber Boxers and in a relevant U.S. market for promoting Championship-Caliber Boxers.”), ¶ 12 (“Haymon has engaged in a series of anticompetitive actions that have enabled it to reach a position of market power in two relevant antitrust markets: the U.S. market for managing Championship-Caliber Boxers; and the U.S. market for promoting Championship-Caliber Boxers.”), & ¶46 (“it is important to recognize that Haymon has achieved market power in the management and promotion of Championship-Caliber Boxers . . .”). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 27 of 44 Page ID #:4124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -26- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 201. According to GBP, the Haymon Entities are acting as both a promoter and a manager in violation of the Ali Act’s firewall provision because they provide the purse money to be paid to the boxer by the promoter and they are involved in the production of the PBC fights on television. Ex. 14-A (De La Hoya Dep.)143:23- 144:9; 146:1-148:4 Ex. 13 (Plaintiffs’ Supp. Resps. to Defendant Haymon Sports, LLC’s First Set of Interrogatories) (“In addition, the Haymon Defendants have repeatedly functioned, and are continuing to function, regularly and illegally, as promoters of boxing matches, both on their television programs and otherwise. The Haymon Defendants arrange and contract for the bouts, the arenas, the sponsors, and they arrange and contract for the critical television broadcasts of such bouts. Indeed, several of Haymon’s clients have posted purse checks on Instagram and other social media websites which are drawn on Haymon Boxing accounts. Moreover, Haymon’s clients repeatedly and correctly refer to him as their ‘promoter,’ as do most boxing journalists.”) Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 28 of 44 Page ID #:4125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -27- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 202. The conflict of interest provision in the Ali Act was intended to prevent “the practice wherein a boxer is forced to hire a relative of a promoter as the boxer’s manager, which results in the boxer then having to surrender a third of all earnings in the ring to an individual associated with the promoter. . . . Boxers should not be forced into hiring unwanted management personnel.” S. Rep. No. 106-83, at 8 (1999) (“Report of the Committee on Commerce, Science, and Transportation on S. 305, The Muhammad Ali Boxing Reform Act, June 21, 1999”) (emphasis added) See also Baglio, Scott, “The Muhammad Ali Boxing Reform Act: The First Jab at Establishing Credibility in Professional Boxing,” Fordham Law Review, 68(6), 2000, pp. 2257-2298 at 2270 (“Although boxers are the weaker parties in contract negotiations with promoters, they lose all bargaining power when they are not represented by a manager who bargains for their best interests.”) (citing Health and safety of professional boxing : hearings before the Committee on Commerce, Science, and Transportation, 103. Cong. 58 (1994) (statement of Eddy Futch, boxing trainer)) 203. See, e.g., Ex. 23 (Golden Boy Term Sheet dated July 2, 2015 (GBP003276-84)) at Section 10(i) Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 29 of 44 Page ID #:4126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -28- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 204. When GBP worked with the Haymon Entities before this lawsuit, GBP would invoice the Haymon Entities for the purse paid to boxers. Ex. 2-A (Gomez Dep.) 264:20-270:6 Ex. 24 (Email from R. Gutierrez to dated June 18, 2014 (GB0017560-66)) Ex. 25 (Email from R. Gutierrez to dated June 18, 2014 (GB0017567-83)) 205. Plaintiffs admit that GBP invoiced the Haymon Entities for purses when the parties worked together, and that paying money to a promoter that is then used to pay a boxer’s purse does not make the payor a boxing promoter. Ex. 2-A (Gomez Dep.) 266:18-267:9 Ex. 9-A (Hopkins Dep.) 20:17-21:12 Ex. 14-A (De La Hoya Dep.)101:21- 102:4 206. GBP admitted that it was not unusual for a manager to provide additional financial support beyond the purse amount to its boxers. Ex. 2-A (Gomez Dep.) 118:5-25 (testifying that managers sometimes provide financial support to boxers); Ex. 14-A (De La Hoya Dep.) 145:2- 12 See also Ex. 2-A (Gomez Dep.) 121:4-8 (testifying that there’s nothing wrong with a manager negotiating the best deal he can get for a boxer) 207. With only two exceptions, the Haymon Entities waived all management fees for their boxers appearing on the PBC. Ex. 1-A (Haymon Dep.) 255:21- 256:9 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 30 of 44 Page ID #:4127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -29- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 208. GBP’s principals and representatives admitted that producing the telecast of a boxing event does not make an entity a boxing promoter. Ex. 6-A (Ramirez Dep.) 32:7-24; 37:11-38:10 Ex. 9-A (Hopkins Dep.) 21:6-19 (testifying that H.B.O. paying a fee to a promoter which is then used to pay the purse does not render H.B.O. a promoter) Ex. 14-A (De La Hoya Dep.)148:23- 149:23 (testifying that HBO is not a boxing promoter “because they’re a television production company.”) 209. A number of successful boxing managers have negotiated with networks like HBO for production of fights involving their boxers. Declaration of Kery Davis dated October 31, 2016 ¶¶ 3-4 210. Oscar De La Hoya admits there is nothing wrong with a manager trying to get his boxers as much money and exposure on television as possible. Ex. 14-A (De La Hoya Dep.)145:22- 25; 147:22-148:4 211. Plaintiff Bernard Hopkins is a minority shareholder in the Golden Boy entities, although he admits that his ownership of Golden Boy shares does not make him personally a boxing promoter. Ex. 9-A (Hopkins Dep.) 75:18-76:1; 85:23-86:12. 212. Plaintiff Bernard Hopkins is not a boxing manager. Ex. 9-A (Hopkins Dep.) 86:13-15 213. Plaintiff Bernard Hopkins has never been managed or advised by any of the Haymon Entities. Ex. 9-A (Hopkins Dep.) 117:20- 118: 1 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 31 of 44 Page ID #:4128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -30- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 214. Plaintiff Bernard Hopkins testified that the last fight from which he believes he was “tied-out” was in 2014, prior to the Covered Period. Ex. 9-A (Hopkins Dep.) 142:10- 143:14 215. GBP alleges in this case that Top Rank, along with itself and only a small number of other promoters, is a “legitimate” promoter. Ex. 17 (SAC) ¶¶ 24; 80-81. 216. Oscar De La Hoya formed and owns the majority of shares in the promotion companies Golden Boy Promotions, LLC, and Golden Boy Promotions, Inc., two of the plaintiffs in this case. Ex. 14-A (De La Hoya Dep.) 18:18- 21; 33:17-22 217. The promoters who promote Premier Boxing Champions series (“PBC”) events are all fully licensed, experienced professionals who are monitored by the state boxing commissions and perform the same duties in connection with the PBC as they do when promoting boxing matches in any other context. Brown Decl. ¶¶ 2-15 Declaration of Leon R. Margules dated October 30, 2016 (“Margules Decl.”) ¶¶ 2-15 Declaration of Louis J. DiBella dated October 30, 2016 (“Dibella Decl.”) ¶¶ 3-8, 18-24 Declaration of Yvon Michel dated October 30, 2016 (“Michel Decl.”) ¶¶ 3-16 Declaration of Marshall Kauffman dated October 30, 2016 (“Kauffman Decl.”) ¶¶ 2-13 218. Promoters that work with the PBC do not thing of themselves as “shams” or “fake” and reject this characterization. Margules Decl. ¶ 13 Dibella Decl. ¶ 18 Michel Decl. ¶ 15 Brown Decl. ¶ 14 Kauffman Decl. ¶ 9 Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 32 of 44 Page ID #:4129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -31- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Uncontroverted Fact (“UF”) Evidentiary Support 219. All promoters that work with the PBC are fully licensed and in good standing in the states where they promote events that are televised on the PBC. Margules Decl. ¶ 6 Dibella Decl. ¶6 Michel Decl. ¶ 6 Brown Decl. ¶ 6 Kauffman Decl. ¶ 2 220. The promoters that work with the PBC have long and wide-ranging promotional careers in the boxing industry. Margules Decl. ¶¶ 2-9 Dibella Decl. ¶¶ 3-8, 24 Michel Decl. ¶¶ 3-9 Brown Decl. ¶¶ 2-10 Kauffman Decl. ¶¶ 3-8 221. A boxing promoter is responsible for putting on the event, meaning that they deal with the venue, the sponsorships, and the network. Ex. 6-A (Ramirez Dep.) 25:10-25:22 222. The promoters that work with the PBC performs the same functions and have the same responsibilities as they do for other boxing matches they promote that are not televised on the PBC. Margules Decl. ¶¶ 10-15 Dibella Decl. ¶¶ 18-24 Michel Decl. ¶¶ 10-16 Brown Decl. ¶¶ 10-15 Kauffman Decl. ¶¶ 9-13 223. Haymon Sports has worked with fighters promoted by entities that GBP regards as “legitimate,” including Top Rank, K2/GGG Promotions, and Matchroom. Cameron Decl. ¶ 5 II. CONCLUSIONS OF LAW Conclusion of Law Legal Support Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 33 of 44 Page ID #:4130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -32- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 216. A claim for attempted monopolization under Section 2 of the Sherman Act requires the plaintiff to establish each of the following elements: “(1) specific intent to control prices or destroy competition; (2) predatory or anticompetitive conduct directed at accomplishing that purpose; (3) a dangerous probability of achieving ‘monopoly power’; and (4) causal antitrust injury.” Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995). 217. To prove a dangerous probability of achieving “monopoly power,” the plaintiff must demonstrate the defendant is likely to have market power in the alleged relevant market. Id. at 1434 (“In order unilaterally to raise prices above competitive levels, the predator must obtain sufficient market power.”) 218. “If the moving party shows that there is an absence of evidence to support the plaintiff’s case, the nonmoving party bears the burden of producing evidence sufficient to sustain a jury verdict on those issues for which it bears the burden at trial.” Id. at 1435 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). 219. “[A]n act is deemed anticompetitive under the Sherman Act only when it harms both allocative efficiency and raises the prices of goods above competitive levels or diminishes their quality.” Id. at 1433. 220. Exclusive dealing arrangements are analyzed under the rule of reason. Twin City Sportservice, Inc. v. Charles O. Finley & Co., Inc., 676 F.2d 1291, 1303-04 (9th Cir. 1982). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 34 of 44 Page ID #:4131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -33- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 221. Under the rule of reason, an exclusive dealing arrangement is only anticompetitive if it “foreclose[s] competition in a substantial share of the line of commerce affected.” Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1162 (9th Cir. 1997). 222. There are “well-recognized economic benefits to exclusive dealing arrangements, including the enhancement of interbrand competition.” Id. 223. “[E]xclusive dealing arrangements imposed on distributors rather than end users are generally less cause for anticompetitive concern. … If competitors can reach the ultimate consumers of the product by employing existing or potential alternative channels of distribution, it is unclear whether such restrictions foreclose from competition any part of the relevant market.” Id. at 1162-63. 224. “[T]he short duration and easy terminability of . . . agreements negate substantially their potential to foreclose competition.” Id. at 1163. 225. “[T]he Sherman Act ‘does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.’” Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., No. 14-15562, 2016 WL 4709868, --- F.3d --- (9th Cir. Sept. 9, 2016), at *8 (citations omitted). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 35 of 44 Page ID #:4132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -34- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 226. “[T]here is ‘no duty to deal under the terms and conditions preferred by [a competitor’s] rivals.’” Id. at *9 (quoting, Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc., 555 U.S. 438, 457 (2009)). 227. “[T]here is only a duty not to refrain from dealing where the only conceivable rationale or purpose is ‘to sacrifice short-term benefits in order to obtain higher profits in the long run from the exclusion of competition.’” Id. (quoting MetroNet Servs., 383 F.3d at 1132). 228. In order for a plaintiff to establish predatory pricing, it must prove: (1) below cost pricing; and (2) “a reasonable expectation of recovering, in the form of later monopoly profits, more than the losses suffered.” Matsushita, 475 U.S. at 588-589. 229. “Predatory pricing schemes are rarely tried, and even more rarely successful.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 589 (1986). 230. “[T]he mechanism by which a firm engages in predatory pricing— lowering prices—is the same mechanism by which a firm stimulates competition; because `cutting prices in order to increase business often is the very essence of competition . . . [;] mistaken inferences … are especially costly, because they chill the very conduct the antitrust laws are designed to protect.’” Cargill v. Monfort of Colorado, 479 U.S. 104, 122 n.17 (1986) (quoting Matsushita, 475 U.S. at 594). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 36 of 44 Page ID #:4133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -35- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 231. Without the probability of recoupment, “predatory pricing produces lower aggregate prices in the market, and consumer welfare is enhanced,” eliminating a predatory pricing claim. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224 (1993). 232. “When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable,” summary judgment is appropriate. Rebel Oil, 51 F.3d at 1435-36 (quoting Brooke Group, 509 U.S. at 242) (quotations omitted). 233. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 234. The four requirements for antitrust injury are “(1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows from that which makes the conduct unlawful, and (4) that is of the type the antitrust laws were intended to prevent.” Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of California, 190 F.3d 1051, 1055 (9th Cir. 1999). 235. For purposes of antitrust injury, the alleged “loss [must] flow[] from an anticompetitive aspect or effect of the defendant’s behavior.” Pool Water Products v. Olin Corp., 258 F.3d 1024, 1034 (9th Cir. 2001); see also Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (antitrust injury must “flow[ ] from that which makes defendants’ acts unlawful.”) Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 37 of 44 Page ID #:4134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -36- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 236. “If the injury flows from aspects of the defendant’s conduct that are beneficial or neutral to competition, there is no antitrust injury, even if the defendant’s conduct is illegal per se.” Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995). 237. “It is well established that the antitrust laws are only intended to preserve competition for the benefit of consumers.” Am. Ad Mgmt., 190 F.3d at 1055; Brantley v. NBC Universal, Inc., 675 F.3d 1192, 1204 (9th Cir. 2012) (dismissing antitrust claim that did “not include any allegation of injury to competition, as opposed to injuries to the plaintiffs”). 238. Where it is undisputed “that competition (and the number of competitors) was intense before, and increased after, … summary judgment [based on the lack of anticompetitive conduct] is appropriate.” O.S.C. Corp. v. Apple Computer, Inc., 601 F. Supp. 1274, 1292 n.8 (C.D. Cal. 1985), aff’d, 792 F.2d 1464 (9th Cir. 1986). 239. Antitrust injury “means injury resulting from higher prices or lower output, the principal vices proscribed by the antitrust laws.” Pool Water, 258 F.3d at 1034. 240. Antitrust “injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be ‘the type of loss that the claimed violations . . . would be likely to cause.’” Id. at 489. Brunswick Corp. v. Pueblo Bowl-O- Mat, Inc., 429 U.S. 477, 489 (1977). 241. Competitors lack antitrust injury to complain of an alleged anticompetitive scheme that would benefit the competitors. Big Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096, 1102 (9th Cir. 1999). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 38 of 44 Page ID #:4135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -37- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 242. “[A]ny model supporting a plaintiff’s damages case must be consistent with its liability case, particularly with respect to the alleged anticompetitive effect of the violation.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013); see also Jensen Enter., Inc. v. Oldcastle Precast, Inc., 375 Fed. App’x 730, 732 (9th Cir. 2010) (dismissing antitrust claim where plaintiff could not establish that lost profits were due to anticompetitive conduct, and would have happened anyway); Am. Booksellers Ass’n, Inc. v. Barnes & Noble, Inc., 135 F. Supp. 2d 1031, 1041-42 (N.D. Cal. 2001) (granting summary judgment for defendant in antitrust case where plaintiff’s damages expert report did not square with real-world evidence nor establish causality). 243. To establish a UPA predatory pricing claim, a plaintiff must show: (1) below-cost sales undertaken for the purpose of injuring competitors or destroying competition that (2) have resulted in a competitive injury. Bay Guardian Co. v. New Times Media LLC, 187 Cal. App. 4th 438, 454 (2010). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 39 of 44 Page ID #:4136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -38- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 244. To establish a UPA predatory pricing claim, a plaintiff must establish that the defendant acted with the intention of injuring competitors or destroying competition. See, e.g., Sandler v. Gordon, 94 Cal. App. 2d 254, 258 (1949) (“The law prohibits, not all sales at less than cost, but only sales which are accompanied by the requisite intention or purpose—i.e., the purpose of injuring competitors or destroying competition. Unless the fact of intention is shown to have existed, the conclusion is that the sale did not constitute a violation of the statute.”); Bebe Au Lait, LLC v. Mothers Lounge, LLC, No. 5:13-cv- 03035, 2014 WL 4744758, at *2 (N.D. Cal. Sept. 23, 2014) (requiring intent for § 17043 below-cost claim); Dooley’s Hardware Mart v. Food Giant Markets, Inc., 21 Cal App 3d 513, 516-17 (1971) (requiring intent for § 17044 loss leader claim). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 40 of 44 Page ID #:4137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -39- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 245. Summary judgment should be granted where plaintiffs have not shown that defendants’ behavior caused plaintiff any antitrust injury. Dealers Wholesale Supply, 1984 WL 775, at *5 (N.D. Cal. July 6, 1984) (granting summary judgment where there was no testimony from former customers “indicating that defendants’ [below-cost pricing] caused them to cease patronizing” the plaintiff’s business, and no statistics, expert analysis, or other evidence “linking defendants’ actions to [the plaintiff’s] lost sales.”); see e.g. Rheumatology Diagnostics Lab. v. Aetna, Inc., No. 12-cv-05847, 2015 WL 1744330, at *13 (N.D. Cal. Apr. 15, 2015) (plaintiffs “offer[ed] no explanation as to why it is appropriate to assume that [defendant]’s capitated IPA contracts, whether below-cost or not, have deprived [plaintiff] of fee- for-service business. . . . [T]he mere fact that [defendant] offered the same services as [plaintiff], standing alone, does not establish a genuine dispute of material fact on causation.”) 246. A claim under California’s Unfair Competition Law, Section 17200 et seq. (“UCL”), requires a plaintiff to establish an “unlawful,” “unfair,” or “fraudulent” business practice causing “injury in fact” and “lost money or property” to the plaintiff as a result of the unfair competition. In re Tobacco II Cases, 46 Cal.4th 298, 311 (2009). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 41 of 44 Page ID #:4138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -40- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 247. “A violation of another law is a predicate for stating a cause of action under” the UCL based on an “unlawful” business practice. ChriMar Sys., Inc. v. Cisco Sys., Inc. 72 F. Supp. 3d 1012, 1020 (N.D. Cal. 2014) (quoting Berryman v. Merit Property Mgmt., Inc., 152 Cal. App. 4th 1544 (2007)); see Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180, 182-83 (1999) (“[S]ection 17200 ‘borrows’ violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.”); Newson v. Countrywide Home Loans, Inc., No. C 09-5288 SBA, 2010 WL 2034769, at *8 (N.D. Cal. May 19, 2010) (“Where a plaintiff cannot state a claim under the ‘borrowed’ law, he or she cannot state a UCL claim either.”). 248. “[U]nfair” means conduct that threatens incipient violation of antitrust law which has “some actual or threatened impact on competition.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 186-187 (1999). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 42 of 44 Page ID #:4139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -41- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW Conclusion of Law Legal Support 249. Where the alleged conduct does not violate the antitrust laws, a claim based on unfair conduct under the UCL also cannot survive. See ChriMar Sys., Inc., 72 F. Supp. 3d at 1020; DocMagic, Inc. v. Ellie Mae, Inc., 745 F. Supp. 2d 1119, 1147 (N.D. Cal. 2010); Chavez v. Whirlpool Corp., 93 Cal. App. 4th 363, 375 (2001) (“If the same conduct is alleged to be both an antitrust violation and an ‘unfair’ business act or practice for the same reason—because it unreasonably restrains competition and harms consumers—the determination that the conduct is not an unreasonable restraint of trade necessarily implies that the conduct is not ‘unfair’ toward consumers.”) 250. The UCL’s “injury in fact” requirement incorporates the federal standing requirement of injury in fact. Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 323 (2011). 251. “Under federal law, injury in fact is ‘an invasion of a legally protected interest which is (a) concrete and particularized; and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id. at 323 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (citations omitted)). Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 43 of 44 Page ID #:4140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -42- Case No. 2:15-cv-3378-JFW-MRW DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND CONCLUSIONS OF LAW DATED: October 31, 2016 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN, LLP By /s/ Michael E. Williams Michael E. Williams Attorneys for Defendants Haymon Boxing LLC, Haymon Sports LLC, Haymon Boxing Management, and Haymon Holdings LLC KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) hweitzman@kwikalaw.com Jeremiah T. Reynolds (SBN 223554) jreynolds@kwikalaw.com 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 Telephone: 310.566.9800 Facsimile: 310.566.9850 Attorneys for Defendant Alan Haymon Development, Inc. Case 2:15-cv-03378-JFW-MRW Document 158-1 Filed 10/31/16 Page 44 of 44 Page ID #:4141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:15-cv-3378-JFW-MRW [PROPOSED] JUDGMENT GRANTING HAYMON ENTITIES’ MOTION FOR SUMMARY JUDGMENT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION GOLDEN BOY PROMOTIONS, LLC, et al., Plaintiffs, v. ALAN HAYMON, et al., Defendants. Case No. 2:15-cv-3378-JFW-MRW [PROPOSED] JUDGMENT REGARDING DEFENDANTS ALAN HAYMON DEVELOPMENT, INC., HAYMON BOXING LLC, HAYMON BOXING MANAGEMENT, HAYMON HOLDINGS LLC, AND HAYMON SPORTS LLC’S MOTION FOR SUMMARY JUDGMENT Hearing Date: November 28, 2016 Time: 1:30 p.m. Judge: Hon. John F. Walter Courtroom: 16 Filing Date: May 5, 2015 Trial Date: March 14, 2017 Case 2:15-cv-03378-JFW-MRW Document 158-2 Filed 10/31/16 Page 1 of 2 Page ID #:4142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. 2:15-cv-3378-JFW-MRW [PROPOSED] JUDGMENT GRANTING HAYMON ENTITIES’ MOTION FOR SUMMARY JUDGMENT [PROPOSED] JUDGMENT On November 28, 2016 at 1:30 p.m., the Motion for Summary Judgment filed by Defendants Alan Haymon Development, Inc., Haymon Boxing LLC, Haymon Boxing Management, Haymon Holdings LLC, and Haymon Sports LLC (the “Haymon Entities”) (ECF No. ___) came for hearing before this Court in Courtroom 16 at 312 N. Spring Street, Los Angeles, CA 90012. Michael E. Williams, Adam B. Wolfson, Jeremiah T. Reynolds, and Barry H. Berke appeared for Defendants Alan Haymon, Alan Haymon Development, Inc., Haymon Boxing LLC, Haymon Boxing Management, Haymon Holdings LLC, and Haymon Sports LLC. Ricardo P. Cestero and James Molen appeared for Plaintiffs Golden Boy Promotions, Inc., Golden Boy Promotions, LLC (collectively, “Golden Boy”), and Bernard Hopkins. After considering the papers filed by the parties and the oral arguments presented by counsel, the Court granted the Haymon Entities’ Motion for Summary Judgment against Plaintiffs. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that: 1. Pursuant to the Court’s Order of November 28, 2016, Judgment is entered against all plaintiffs and in favor of the Haymon Entities. 2. Plaintiffs are not entitled to any recovery from the Haymon Entities. 3. As the prevailing parties, pursuant to Fed R. Civ. P. 54(d), the Haymon Entities are entitled to recover prejudgment costs from Plaintiffs in an amount to be determined pursuant to a separately filed Memorandum of Costs, at which time this Judgment may be amended to include the amount of recoverable costs. DATED: __________________ By: The Honorable John F. Walter Case 2:15-cv-03378-JFW-MRW Document 158-2 Filed 10/31/16 Page 2 of 2 Page ID #:4143