For my part, given my read of the allegedly defamatory statement, I think Pacquiao had a shot at getting the counterclaim dismissed at the motion to dismiss stage. Perhaps the lawyers made a tactical decision that it would be seen as inconsistent to oppose the motions seeking to dismiss Pacquiao's defamation claim on the ground that they are premature while at the same time seeking to dismiss the counterclaim with a similar early motion. Not really sure.
Second update: Turning now to Pacquiao's claims, and specifically his claim with respect to Mayweather Promotions, as you may recall from this post, "I don't Think Pacquiao and Mayweather Jr. are Close to Settling Their Litigation," I discussed Mayweather Promotions' motion to dismiss Pacquiao's Amended Complaint and Pacquiao's response to the motion.
As you will recall, the allegedly defamatory statement allegedly made by Leonard Ellerbe (on behalf of Mayweather Promotions) was as follows:
"This is a simple question. If you have nothing to hide, then why not comply?"With respect to the alleged Ellerbe statement, as set forth in my earlier post, I do not think this alleged statement was defamatory because Ellerbe is not asserting a fact about Pacquiao. Instead, he is speculating about potential motivations Pacquiao may have for not agreeing to random blood testing with no black-out dates leading up to a fight. Therefore, it seems to be protected opinion and nonactionable.
As set forth in my earlier post, Mayweather Promotions' motion and Pacquiao's opposition addressed whether the statement was opinion or fact and I won't repeat those arguments here.
However, in my earlier post, I also noted that in Pacquiao's opposition he argued, inter alia, that Mayweather Promotions' motion should be denied because it failed to address the other allegedly defamatory statements in the Amended Complaint, including statements allegedly made by Mayweather, Jr. as President of Mayweather Promotions and by Richard Schaefer, Oscar de la Hoya, Roger Mayweather and Mayweather, Sr. as alleged co-conspirators.
Well, Mayweather Promotions' has now filed its reply and, you guessed it, it takes up the alleged statements by Mayweather Jr., as President of Mayweather Promotions arguing that all of these statements are nonactionable opinion.
As set forth in Pacquiao's most recently filed motion to strike, the alleged statements allegedly made by Mayweather Jr. were as follows:
- "when asked on a nationally-broadcast radio interview about Pacquiao’s physical development, Mayweather, Jr. responded, 'cause we know the Philippines got the best enhancing drugs'";
- "Based on Pacquiao’s alleged use of performance-enhancing drugs, Mayweather, Jr. stated publicly he had 'great doubt as to the level of fairness [he] would be facing in the ring that night'";
- "At a press junket, Mayweather, Jr. stated, “Pacquiao’s got the power pellets, yo, and the steroid juice. Pacquiao got the power pellets you know.'"
On August 10, 2010, Pacquiao's legal team filed a motion to strike portions of Mayweather Promotions' Reply addressing the alleged Mayweather Jr. statements or, in the alternative, requested leave to file a sur-reply to address the new arguments. In this filing (the motion to strike), Pacquaio's camp does take the opportunity to address Mayweather Promotions' arguments concerning Mayweather Jr.'s alleged statements.
Specifically, Pacquiao argues as follows:
Its President’s statements are not “opinions” and, even if they were, opinions are actionable where, as here, a reasonable listener would have understood the statements to imply an assertion of fact. []. Especially at the dismissal stage, a reasonable listener could have understood Mayweather, Jr. to imply as fact that Pacquiao has taken performance enhancing drugs when he said, 'Pacquiao got the power pellets you know'My prediction, the Court will grant Pacquiao's motion to the extent he seeks leave to file a sur-reply, Pacquiao will file the sur-reply, and the Court will deny Mayweather Promotion's motion to dismiss.
Fight Lawyer
