One thing that kind of surprised me is that Pacquiao's counsel led off the argument section (after setting out the motion to dismiss standard) with an argument that the motion to dismiss should be denied because Schaefer and De La Hoya did not address the conspiracy allegations -- those allegations that they conspired with the Mayweathers to defame Pacquiao.
Essentially, Pacquiao is arguing that Schaefer and De La Hoya are liable for the other defendants' allegedly defamatory statements and their failure to address these other statements warrants the denial of the motion. However, in a footnote, Pacquiao's lawyers acknowledge that they didn't assert a conspiracy "claim," i.e. they only asserted allegations concerning a "conspiracy." Specifically, in the complaint there is an allegation that the defendants conspired to defame Pacquiao (there is no similar allegation in the single Count for defamation however). In this footnote, they ask for leave to re-plead (file another, amended complaint) if the court determines that the allegations themselves do not give rise to a conspiracy claim.
Given all of the strong arguments they had on the statements alleged in the complaint with respect to these defendants (Schaefer and De La Hoya), I think starting with an argument that relies on Shaefer and De La Hoya's failure to address a claim that wasn't made is surprising.
Otherwise, the brief looked good and, although I think that many of the statements at issue in the complaint may prove non-actionable opinion, Pacquiao should survive the motion to dismiss. Here is one interesting argument concerning De La Hoya's alleged actual malice:
Moreover, as explained above, a reasonable juror could conclude that de la Hoya tried to manufacture a false basis for accusing Pacquiao of taking performance-enhancing drugs. After fighting Pacquiao, de la Hoya stated publicly that the Filipino 'he didn’t hit hard' and that 'I could’ve stood there and put my face in front of him and he couldn’t have hurt me.' Exs. 5-6. However, in December 2009, de la Hoya suddenly reversed course and began saying that Pacquiao’s punches 'felt the same' as the 'strong' punches from Mosley and Vargas, two boxers who took performance-enhancing drugs when they fought de la Hoya.10
I will continue to monitor.
Fight Lawyer
