Thursday, September 30, 2010

Hunting, Accidental Shooting, and Defamation

While this has nothing to do with fighting, we received a favorable decision today from Judge Karas of the United States District Court for the Southern District of New York in a defamation case that is a good read if you are so inclined. 

I like to call it the "Dick Cheney" case because of the factual similarities this case has to the alleged hunting accident a few years back involving the VP.  Note, this case has nothing to do with Cheney.

Here is a link to the decision for those interested.

For what it's worth, I like Aldo tonight on the WEC card

There is your mention of fighting for the day. 

Fight Lawyer

Wednesday, September 29, 2010

Pacquiao & Top Rank Back In Federal Court As Defendants In Lawsuit Filed by Grant Boxing

On September 24, 2010, Grant Boxing, Inc. filed a complaint in the United States District Court for the Southern District of New York against, inter alia, Top Rank, Inc. and Manny Pacquiao. 

As set forth in the complaint: 
Grant Boxing is a well-known manufacturer of boxing and training equipment, including but not limited to boxing gloves, head gear, punch mitts, heavy bags and speed bags, as well as apparel, clothing and accessories.  GB Licensing developed what it calls the “Punchy” logo in 2003. The Punchy logo is a distinctive pictograph of a boxer from the waist up delivering a roundhouse punch. The head and hands of the boxer are rendered as three ovals. The oval delivering the punch is not a perfect circle, giving it the appearance of movement. 
At this link to the Grant Boxing website you can see the two images at issue -- the first is on Klitschko's glove and the second is on Roy Jones, Jr.'s glove.

As alleged in the complaint, in or around November 2009, Grant first became aware that Pacquiao was allegedly misappropriating the Grant marks.  Specifically, the complaint provides as follows:
On November 14 2009, the date of a boxing match between Manny Pacquiao and Miguel Cotto, Grant Elvis Phillips, founder and chief executive officer of Plaintiffs, received a call from a boxing equipment distributor asking if Grant Boxing had made a deal with MP Promotions, as he saw what he believed was the Punchy Trademark hanging above the boxing ring at the Pacquiao-Cotto fight. Mr. Phillips did not see the fight, but set about to investigate the allegations that his Punchy Trademarks had been misappropriated.  In the ensuing few months Mr. Phillips discovered the Punchy Trademarks had indeed been misappropriated and re-fashioned as a logo for Manny Pacquiao’s company, MP Promotions (the “Infringing Logo”). As can be seen from the example below, the Infringing Logo simply flips horizontally the pictographic portion of the Punchy Trademarks, maintaining the overall appearance of the mark.
Here is the allegedly infringing image as taken from the complaint:



According to the complaint, Grant sent a cease and desist letter to Mike Koncz on March 12, 2010.  Grant claims the letter was ignored and that Top Rank and Pacquiao allegedly continued to use the allegedly infringing image in connection with promoting the Margarito fight. 

Specifically, Grant alleges:
On September 1, 2010, a press conference open to the public, attended by Manny Pacquiao, among others, was held at Chelsea Piers, Pier 60, in New York City. The Infringing Logo was prominently and repeatedly displayed on the press conference backdrop and on the press kits that were handed out. Top Rank’s website, www.toprank.com, contains numerous instances where the Infringing Logo is displayed in connection with the upcoming Pacquiao-Margarito fight.
Grant asserts claims for Federal Trademark Infringement, False Designation Of Origin, Unfair Competition, False Advertising, Federal Trademark Dilution, Deceptive Trade Practices, and Trademark Dilution
I will continue to monitor.

Fight Lawyer

Tuesday, September 28, 2010

Zuffa Responds To Bellator's Motion To Dismiss in Pavia Action

Following up on my posts, Bellator Files A Motion to Dismiss Zuffa's Complaint and My Take on Zuffa's Lawsuit Against Pavia and Bellator, on September 27, 2010 Zuffa filed its opposition to Bellator's motion to dismiss for lack of personal jurisdiction.  In opposing the motion, Zuffa submitted two declarations, including one from Lorenzo Fertitta.

As you will recall from my earlier post, in connection with its motion to dismiss, Bellator filed a declaration of its president, Tim Danaher (as an aside, if you look at page 6 of this document, there was also a Tim Danaher affiliated with Plainfield Asset Management, which according to this article at MMAPayout.com, "Bellator Investor Subject of FBI Investigation," is an investor in Bellator) that provided in relevant part as follows:
[. . . ]
3) Bellator is a Delaware limited liability company. It is headquartered in Chicago, Illinois. It has no offices in Nevada.
4) Bellator has never promoted a MMA event in the State of Nevada.
5) Bellator is not licensed in the State of Nevada and has never applied for a license in the State of Nevada.
6) Bellator owns no real property in the State of Nevada and has no bank account in the State of Nevada.
7) Bellator has no contracts with any person or entity headquartered in the State of Nevada.
8) Bellator does not sell merchandise in the State of Nevada.
9) Bellator has never placed any advertising in the State of Nevada.
10) Bellator conducts no business in the State of Nevada.
11) None of the activities in which Bellator is alleged to have engaged took place in Nevada.
Zuffa notes in its opposition that:
The only evidence Bellator offers in support of its Motion is a short declaration from its President, Tim Danaher. []  Notably, Mr. Danaher declares under penalty of perjury that 'Bellator has no contracts with any person or entity headquartered in the State of Nevada.' [].  The evidence developed to date demonstrates that the foregoing statement is patently false.
Specifically, Zuffa presents the following evidence as supporting general jurisdiction in Nevada over Bellator:
Bellator's own website identifies multiple individuals from Las Vegas that the company has signed to fight in its events. []  Basic internet research demonstrates, at a minimum, that current Bellator fighters Eric Schambari, Lynn Alvarez, Ulysses Gomez, and Michael Chandler are all residents of Nevada. [].  Additional research shows that at least two other fighters, Ferrid Kheder and Jessica Rakoczy, who mayor may not still be under contract with Bellator, were residents of Nevada at the time of their contracts. [].  It also appears that at least one of the recently-crowned 'Bellator Girls' is a resident of Nevada. [].  Bellator, in other words, appears to have multiple contracts with persons 'headquartered in the State of Nevada.'
Zuffa also argues that Bellator's website presence in Nevada is not merely passive because it promoted an Internet contest to select "Bellator Girls" and that a woman in Nevada was one of the winners.  In addition, Zuffa notes that "Bjorn Rebney appeared on behalf of Bellator at the MMA Awards Show held at the Palms Casino in Las Vegas in December 2009."
 
Zuffa next argues that specific jurisdiction is appropriate under a "purposeful direction" approach.
 
Finally, Zuffa requests jurisdictional discovery in the event that a prima facie showing of jurisdiction over Bellator has not yet been made.
 
Fight Lawyer

Thursday, September 23, 2010

New York Governor Race and the Legalization of MMA

For those of you following the efforts to legalize MMA in New York, I thought it was worth examining where gubernatorial candidates Andrew Cuomo and Carl Paladino stand on the legalization or MMA (spoiler alert:  I don't have an answer yet) and why it matters for purposes of getting MMA in New York. 

With respect to the election, as set forth in this article in the New York Times yesterday, Cuomo’s Image as Unstoppable Suffers a Blow, the Quinnipiac University Polling Institute conducted a poll that showed:
Mr. Cuomo with 49 percent support and Mr. Paladino at 43 percent, with a margin of error of plus or minus four percentage points. But unlike recent polls that have queried samples of registered voters, Quinnipiac surveyed those considered likely to vote in November, a type of survey that tends to favor Republican candidates.
However, today, as reported here by the New York Times in a post, Another Day, Another Poll, and a Very Different Result, a poll by the "Siena Research Institute, showed Mr. Cuomo leading Mr. Paladino by 57 percent to 24 percent, with Rick A. Lazio, who lost the Republican primary but remains in the race on the Conservative Party line, earning 8 percent."

As you may know, Paladino had a surprise victory over Rick Lazio in the GOP primary and he is admittedly blunt and has no problems taking politicians to task, including Assembly Speaker Sheldon Silver, who I believe is the fundamental reason that MMA is not yet legalized in New York.

Indeed, as set forth in this article in the Daily News, "Carl Paladino pulls no punches: Pataki's a 'degenerate idiot,' and Shelly Silver 'belongs in Attica'":
He told building contractors in Ronkonkoma that Gov. Paterson was 'a wimp . . . really, he's pathetic.' Former Gov. George Pataki? He's a 'degenerate idiot.'
The Legislature? 'They don't have a brain in their heads,' he told gas station owners in upstate Rochester.

In six hours of interviews with The News, he described the Albany work ethic this way: 'Their idea is to play pinochle, get sloshed at the bar, rub elbows with lobbyists, then leave town by Wednesday afternoon to go home and play golf.'

His solution: 'I'm going to have to put some people in prison.' Who's at the head of the list? 'The petty dictator and master manipulator Shelly Silver.' The Assembly speaker, he repeats, 'belongs in Attica.'
Now that you have a little background on the political situation and the players - let's turn back to why this is important to getting MMA legalized in New York.

Under any scenario, i.e. either the ordinary legislative process or the budget process, we are going to need a governor who is on board with MMA to get it legalized -- both legislative houses, of course, can veto the Governor with a two-thirds vote, but given the opposition in the Assembly especially, obtaining such a majority is highly unlikely.

I reached out to Paladino's office and was told that he has not yet taken a position on the legalization of MMA.  I asked if he planned on taking a position before the election and the individual on the other end told me she had no answer. 

So, at this point we don't know where he stands, but given that he has vehemently attacked the Assembly Speaker, I think there is a chance that we can get him in our corner.

I also reached out to Cuomo's office and was told I would get a response if I sent an e-mail.  I did just that and have not heard back yet.

Next steps, I will compose a letter to Paladino and Cuomo presenting the reasons that MMA should be legalized and hope that it gains some traction. 

I will keep you posted.

Fight Lawyer

Wednesday, September 22, 2010

Fifth Circuit Revives SEC Complaint Against Mark Cuban

On September 21, 2010, the United States Court of Appeals for the Fifth Circuit vacated the judgment dismissing the Securities & Exchange Commission case against Mark Cuban for insider training and remanded back to the trial court for further proceedings, including "discovery, consideration of summary judgment, and trial, if reached."

As set forth by the Court of Appeals, the crux of the allegations in the complaint were as follows:
The core allegation is that Cuban received confidential information from the CEO of Mamma.com, a Canadian search engine company in which Cuban was a large minority stakeholder, agreed to keep the information confidential, and acknowledged he could not trade on the information. The SEC alleges that, armed with the inside information regarding a private investment of public equity (PIPE) offering, Cuban sold his stake in the company in an effort to avoid losses from the inevitable fall in Mamma.com’s share price when the offering was announced.
The district court granted Cuban's motion to dismiss because, as described by the Court of Appeals, the district court "found that, at most, the complaint alleged an agreement to keep the information confidential, but did not include an agreement not to trade" and "[f]inding a simple confidentiality agreement to be insufficient to create a duty to disclose or abstain from trading under the securities laws[.]:

The Court of Appeals, reading the complaint in a light most favorable to the SEC, reversed holding that "[t]he allegations, taken in their entirety, provide more than a plausible basis to find that the understanding between the CEO and Cuban was that he was not to trade, that it was more than a simple confidentiality agreement."
Specifically, in relevant part, the Court of Appeals held as follows:
In isolation, the statement 'Well, now I’m screwed. I can’t sell' can plausibly be read to express Cuban’s view that learning the confidences regarding the PIPE forbade his selling his stock before the offering but to express no agreement not to do so. However, after Cuban expressed the view that he could not sell to the CEO, he gained access to the confidences of the PIPE offering. According to the complaint’s recounting of the executive chairman’s email to the board, during his short conversation with the CEO regarding the planned PIPE offering, Cuban requested the terms and conditions of the offering. Based on this request, the CEO sent Cuban a follow up email providing the contact information for Merriman. Cuban called the salesman, who told Cuban 'that the PIPE was being sold at a discount to the market price and that the offering included other incentives for the PIPE investors.'  Only after Cuban reached out to obtain this additional information, following the statement of his understanding that he could not sell, did Cuban contact his broker and sell his stake in the company.
The allegations, taken in their entirety, provide more than a plausible basis to find that the understanding between the CEO and Cuban was that he was not to trade, that it was more than a simple confidentiality agreement. . . . Under Cuban’s reading, he was allowed to trade on the information but prohibited from telling others—in effect providing him an exclusive license to trade on the material nonpublic information. Perhaps this was the understanding, or perhaps Cuban mislead the CEO regarding the timing of his sale in order to obtain a confidential look at the details of the PIPE. We say only that on this factually sparse record, it is at least equally plausible that all sides understood there was to be no trading before the PIPE. That both Cuban and the CEO expressed the belief that Cuban could not trade appears to reinforce the plausibility of this reading.

Fight Lawyer

Quick Thoughts on the Golden Boy Top Rank Lawsuit

As reported by ESPN, "Golden Boy Promotions sued bitter rival promotional powerhouse Top Rank, its chairman, Bob Arum, and chief financial officer David Lopez in federal court Tuesday, accusing them of racketeering and millions of dollars in fraud."

The Complaint (available here via Courthousenews.com) is a very interesting read. 

I hope to write more about this later, but ultimately after a quick review, I think that this is really a breach of contract and accounting case -- which are two counts -- and I think the RICO claim, breach of fiduciary duty claim, the aiding and abetting a breach of fiduciary duty claim, and the fraud claim should and likely will fail and be dismissed. 

The 2007 settlement agreement referenced in the complaint and the ESPN article, unfortunately, was filed under seal so I can't opine on the arbitration provision Arum references in the ESPN article.

Fight Lawyer

Tuesday, September 21, 2010

Update: "My Analysis Re Liability for Viewing an Illegally Streamed Event" In Light of New Senate Online Piracy Bill

In an earlier post, My Analysis Re Liability for Viewing an Illegally Streamed Event, I posted about the potential ramifications of viewing an illegally uploaded stream.  As you may recall, my analysis focused only on liability for viewing an illegal stream, i.e. it did not focus on the easier question of liability for uploading the stream and/or providing a website or forum where viewers can obtain the illegal stream.  This post will address whether the bill titled the Combating Online Infringement and Counterfeits Act introduced by the Senate yesterday (if it becomes law) changes that analysis.

I again repeat my statement from the last post:
At the outset, first please see my disclaimer and note that the information on this site is my opinion, it is not intended to be (and is not) legal advice or an advertisement for legal services. Second, at 10,000 feet, everyone should know that people get sued all the time and a lawsuit, whether meritorious or not, will cause pain, i.e. expending legal fees, wasting time, and added stress. Thus, even if after reading this post you conclude that there is very little probability of success for a claim based on viewing an illegal upload, there is nothing preventing Zuffa, or any other entity broadcasting events, from filing a lawsuit (they could face sanctions if the claim was totally frivolous, but that is not the case here in my opinion). Further, as with the music industry, there is nothing preventing Zuffa or another ppv producer from making an example of a select few -- and you don't want to be one of the few facing legal fees and exposure etc.
As you may be aware, on September 20, 2010 the Senate introduced a bill, The Combating Online Infringement and Counterfeits Act, which would give federal law enforcement "authorities more tools to crack down on websites engaged in piracy of movies, television shows and music." The text of the CCICA is available here.

I did a quick read of the Senate bill and it does not appear to change my analysis from my earlier post because it focuses only on Internet sites, i.e. it has nothing to do with individuals accessing those sites.

Specifically, the bill creates Section 2324 to Title 18 Chapter 113 of the United States Code and provides in relevant part as follows:
‘‘§ 2324. Internet sites dedicated to infringing activities
‘‘(a) DEFINITION.—For purposes of this section, an Internet site is ‘dedicated to infringing activities’ if such site—
‘‘(1) is otherwise subject to civil forfeiture to the United States Government under section 2323;
or
‘‘(2) is—
‘‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer—
‘‘(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or
‘‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’; 15 U.S.C. 1116(d)); and ‘‘(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name. 
Even though I do not think the bill changes the analysis with respect to those viewing an illegal stream, if it becomes law, it would be a significant victory for those businesses affected by piracy, including Zuffa.


As set forth in the Yahoo! article from above, according to Senator Patrick Leahy's office:
The bill will give the Justice Department the 'tools to track and shut down websites devoted to providing access to unauthorized downloads, streaming or sale of copyrighted content and counterfeit goods,' Leahy's office said.
In an article, Bill Would Give Justice Department Power to Shutter Piracy Sites Worldwide, Wired has more information on the bill and describes the enforcement provisions of the Act, i.e. the Justice Department's ability to seek an injunction forcing the domain registrar or registry to stop resolving the allegedly infringing site's domain:
The bipartisan legislation, dubbed the Combating Online Infringement and Counterfeits Act, (.pdf) amounts to the Holy Grail of intellectual-property enforcement. The recording industry and movie studios have been clamoring for such a capability since the George W. Bush administration. If passed, the Justice Department could ask a federal court for an injunction that would order a U.S. domain registrar or registry to stop resolving an infringing site’s domain name, so that visitors to PirateBay.org, for example, would an error.
Fight Lawyer

Sunday, September 19, 2010

What's Next For Sonnen with the California State Athletic Commission -- A Look at the Relevant Law and Rules

As reported by Sherdog in an article, "CSAC: Sonnen Positive for PEDs at UFC 117," the California State Athletic Commission has alleged that Chael Sonnen failed his drug test in connection with his fight with Anderson Silva last month.

Specifically, Sherdog reports as follows:
According to California State Athletic Commission Executive Officer George Dodd, Chael Sonnen has been notified that he failed post-fight drug screening following his loss to Anderson Silva at UFC 117, which was held Aug. 7 at the Oracle Arena in Oakland, Calif. '[Sonnen] received his notice yesterday,' Dodd told Sherdog.com shortly after the Shane Mosley-Sergio Mora boxing match ended Saturday night in Los Angeles.
According to Sports Illustrated reporter Josh Gross via Twitter, "Chael has option to respond, request hearing. Calif. attorney then will lay out case in front of CSAC. Chael presents his case. Takes time."

I don't have much (or anything) to add to the substance of the CSAC allegation, but I did want to provide readers with the relevant procedural rules and statutes that will govern next steps in the process.

At 10,000 feet, the CSAC will likely issue a temporary suspension while it conducts an investigation and Sonnen will have 30 days to request a hearing. If, after the investigation, the CSAC revokes Sonnen's license, he will need to wait a year to seek reinstatement or apply for another license.

Note, if the CSAC does suspend or revoke Sonnen's license, Sonnen has the ability to appeal to the Superior Court only as to whether the CSAC committed an error in the law, i.e. Sonnen does NOT have the right to appeal the factual determinations of the CSAC, which means any appeal to the Superior Court in this context would be a waste of time because, as set forth below, the CSAC has a tremendous amount of discretion under the relevant law.

As you may recall and for comparative purposes, a similar temporary suspension was put in place after the Margarito Mosley fight where the CSAC investigated the "plaster like substance" on Margarito's gloves before the fight.

First, Section 303 of the CSAC "Professional Boxing Rules," which is applicable to the CSAC "Professional Full-Contact Martial Arts and Kickboxing Rules," because it is not excluded under Section 502 (see CA BPC Article 9, Section 18761 "Rules and regulations of the commission relating to professional boxing shall apply to kickboxing and martial arts, except where specifically excluded by the commission's regulations"), provides as follows:
The administration or use of any drugs, alcohol or stimulants, or injections in any part of the body, either before or during a match, to or by any boxer is prohibited.
The FAQ portion of the CSAC website provides more information concerning the testing procedures and substances tested for:
Q. What kinds of substances may be tested for at an event?
A. The following is a list of substances for which the Commission tests:
Stimulants
Narcotics
Cannabinoids (Marijuana)
Anabolic Agents (both Exogenous and Endogenous)
Peptide Hormones
Masking Agents
Diuretics
Glucocorticosteroids (Requires medical exemption)
Beta-2 Agonists (Asthma Medications)
Agents with Anti-Estrogenic Activity
Q. Is it okay to use dietary supplements?
A. The Commission’s policy is one of ‘strict liability’. This means YOU are responsible for anything that you put in your body. If you take supplements, and you are later found to be positive, it is your responsibility.
Be aware that the supplement industry is poorly regulated. Don’t put anything in your body that may negatively affect your health and safety and career.
If a prohibited substance is detected in your sample – even if it was unintentional – it will result in a violation of Rule 303.
Be aware that a wide range of products are considered dietary supplements, including vitamins, minerals, amino acids, herbs, botanicals, and more. The Commission warns contestants that some of these products have a negative effect on performance.
Moreover, there are some studies (prior to 2004) that found that some supplements were contaminated with steroids.
Q. What if I need to take medicine for my health?
A. The Commission understands that some athletes may need to take prescribed medicine for symptoms diagnosed by physicians. However, don’t attempt to use a medical prescription as an excuse to circumvent the anti-doping testing procedure or policy.
You must inform the Commission well before your bout if you are taking any kind of medicine. You will then need to be fully cleared by a Commission Physician. This may take time. Plan ahead. Many prescription and over-the-counter medicines can lead to a positive doping test, such as ADHD medicine, asthma inhalers, cold medicines, etc.
Call the USADA (Anti Doping Agency) Drug Reference Line (1-800-233-0393) to check any substance. You may apply to have medications containing prohibited substances approved for health conditions.
If you are taking a prescribed medicine, you must contact the Commission for instructions on how to apply for an exemption. This process needs to be completed well before the competition.
[. . .]
.If a prohibited substance or method is detected in your sample – even if it was prescribed and the Commission was not informed in a timely and clear manner – it may result in a violation of Rule 303.
Second, Section 390 of the Rules, "Violations of Laws or Rules," provides as follows:

Any licensee who violates the laws of the State of California, with the exception of minor traffic violations, or the rules of the Athletic Commission, or who fails or refuses to comply with a valid order of a commission representative, or who conducts himself or herself at any time or place in a manner which is deemed by the commission to reflect discredit to boxing, may have his or her license revoked, or may be fined, suspended or otherwise disciplined in such manner as the commission may direct.
Third, Section 399 of the Rules, "Procedure when License Denied or Revoked," provides in relevant part as follows:
Anyone who has had his license revoked may not petition for reinstatement or apply for a new license until one year after the date of such revocation. Any petition for reinstatement filed within the one year period may be denied without the necessity of a hearing.
Also, the relevant statute, Section 18842 of the California BUSINESS AND PROFESSIONS CODE, Article 14, Administration and Enforcement, provides the framework for challenging a temporary suspension by the CSAC for a Code or Rule violation:
18842. The commission, the executive officer and other employees duly authorized by the executive officer, shall have the power to suspend temporarily, any license until final determination by the commission when, in his or her opinion, the action is necessary to protect the public welfare or is in the best interest of boxing or martial arts. The suspension may be without advance hearing, but the suspended licensee may apply to the commission for a hearing on the matter to determine if the suspension should be modified or set aside. The application for a hearing shall be in writing and shall be received by the commission within 30 days after the date of suspension. Upon receipt of such written request, the commission shall set the matter for hearing within 30 days.
Finally, Section 18841 provides that a license may be suspended or revoked for "any violation or attempted violation of this chapter, any rule or regulation adopted pursuant thereto" and provides the method for appeal to the superior court.

Specifically, Section 18841 provides as follows:
18841. Notwithstanding any other provision of this code, licenses issued under this chapter may be revoked, suspended, or placed on probation under terms and conditions including, but not limited to, the making of restitution, for any violation or attempted violation of this chapter, any rule or regulation adopted pursuant thereto, or for any cause for which a license may be denied. Such action shall be final, except that the propriety of such action is subject to review, upon questions of law only, by the superior court. The action of the commission shall stand unless and until reversed by the court.
Fight Lawyer

Thursday, September 16, 2010

Strong Showing by New York Fighters Last Night -- Nothing Great to Report on the Legalization of MMA Effort in New York

Despite the ban on MMA in New York -- I have written extensively about the ban here -- New Yorkers still had a great showing last night. 

At UFN 22, Renzo Gracie black belt David Branch improved to 7-1 with a unanimous decision victory (30-27 across the board) over Tomasz Drwal.

Next, on the Ultimate Fighter, Spencer Paige, who according to Bloody Elbow trains at Central NY MMA, advanced  to the house with decision victory over Steve Magdaleno.

New York was also represented when Marc Stevens, who fights out of Lorraine, New York and who wrestled at the University of Buffalo when Josh Koscheck was an assistant coach there, took on T.J. O'Brien.

As MMAJunkie points out, Koscheck only vaguely remembers Stevens and "wonders aloud if his skills stretch beyond the wrestling mat. . . .  Referee Steve Mazzagatti gets the action started, and Marc quickly drops his opponent with a lopping overhand right. The punch lands solid, as do the dozen follow-up shots that prompt a quick, 13-second knockout."

Bottom line, great night for New York fighters.

This brings me to an update on MMA in New York.  The legislative session is over and the budget has been passed and so another year goes by and MMA is still illegal.  The parallel bills to legalize MMA will be re-introduced in the Assembly and the Senate next year and the path to legalization remains the same.

As I posted here, it is my view that the fact that the Assembly Speaker has now specifically stated that he is not "enamored" with the idea of mixed martial arts in the state means that the bill has virtually no probability of reaching the Assembly floor for a vote, i.e. it is not going to pass.  Silver is not only the Speaker of the Assembly, controlling the legislative body, but he also chairs the Rules Committee, which has final say on this bill before it reaches the full Assembly for a vote.

As a recent New York Post piece, Shelly's schtick, concludes:
Silver is far and away the most powerful legislator in Albany; he personally appointed the state's top fiscal watchdog; his pick runs New York's schools, public and private -- and he enjoys substantial influence over the courts.
And he's complaining about dictators?
It is indeed to laugh.
Next up for the speaker is Andrew Cuomo, by all credible accounts New York's next governor.
'We've worked with Andrew in the past,' Silver said Monday.
Translation: 'Come into my parlor,' said the spider to the fly. Who'll be taking dictation when it's over, we wonder?
Despite Silver's control (and his view concerning MMA), the public generally focuses on Assemblyman Bob Reilly when it discusses the opposition to MMA.  It is true that Reilly is on the Committee on Tourism, Parks, Arts and Sports Development, which is where the bill originates in the Assembly, but the bill has passed (i.e. been referred) out of that Committee in 2009 and 2010

Thus, it is clearly not his presence on the Tourism committee that is fatal to the bill, but it is instead the fact that he apparently has the Assembly Speaker's ear on the issue.  Given the vehemence with which Reilly opposes MMA (at this point there is no convincing him), the focus should be on the Speaker.

Nonetheless, because he is the most vocal opponent, everyone focuses on him.  In fact, Inside MMA recently had Reilly as a guest and, unfortunately, provided an open platform, without debate, for him to articulate his misguided views.  (As an aside, I do not receive HDNet because Time Warner Cable made the terrible decision to cut the channel from the lineup, but it appears from clips that I have seen that Reilly did not participate in a debate.) 

Putting aside his overuse of "violence" to compensate for the fact that he had nothing really intelligent to say on the topic (many other writers broke down his assertions and I won't do so here), one thing that he said did stick out.  Unfortunately, nobody called him on it.

As Cagepotato transcribes from the interview, Reilly stated as follows:  "'We don't want prostitution here and we don't want dogfighting here and we don't want Ultimate Fighting here.'" 

Really Assemblyman Reilly?  Who is we and, if that is the case, why don't we let the Assembly vote and see if you are right?  The Senate and the Governor obviously disagreed this year.

As Assemblyman Engelbricht, Chair of the Tourism Committee and a democrat, stated in an interview with MMAJunkie:
"If we were able to get it to the floor, we'd probably pass it with Republican votes," Englebright said. "But there is a desire, I think, on the part of many of the members of our Democratic majority to resolve this matter satisfactorily within our own [party] before submitting it to the uncertainties of a debate."

So, stated differently, the bill would pass if the full Assembly had the opportunity to vote -- as it should, but the majority will prevent that from happening until there is a consensus (or satisfactory resolution of the matter whatever that means).  Bottom line, the Speaker needs to be on board and, for now, he is not.

Fight Lawyer

Wednesday, September 15, 2010

A Little More On The Public Administrator Who Petitioned to Be The Administrator of "Masks" Estate

Following up on my post, California Court of Appeal Rules That Charles David Lewis, Jr.'s (aka "Mask") Children's Mother Should Administer His Estate, I just came across this article over at Voice of OC, Orange County's Nonprofit Investigative News Agency, "Public Administrator's Approach Draws More Scrutiny," which addresses, inter alia, the Public Administrator who petitioned to be the administrator of the late Charles David Lewis, Jr. aka "Mask" estate and attempted to supplant the mother of Lewis' two children, Diane Larson, who lived with the two minor children in Illinois, from acting as administrator of the estate.

Specifically, the article addresses claims that the Public Administrator is "overzealous" in how he "handles the estates of deceased people and those living who courts have determined cannot manage their estates on their own."

Interesting stuff.

Fight Lawyer

Mayweather Promotions Suffers Another Loss in South Carolina Copyright Case

Following up on my post, Mayweather and WWE Stuck In South Carolina Court In Copyright Dispute Over Song “Yep” (and cutting against my post, Not Everything In The Legal System Has Gone Wrong For Floyd Mayweather, Jr. Lately) on September 13, 2010, United States District Judge Joseph F. Anderson, Jr. of the United States District Court for South Carolina denied Mayweather Promotions LLC's ("Mayweather") motion for reconsideration of its order denying Defendants’ motion to dismiss, or in the alternative, motion to transfer venue.

In denying Mayweather's motion for reconsideration (notably, WWE did not file a similar motion and Mayweather Jr. did not join the motion), the Court recognized at the outset that "[m]otions under Rule 59 are not to be made lightly: 'reconsideration of a previous order is an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.'” [internal citation omitted].  The Court noted that "“[m]ere disagreement" with a court’s ruling" does not support a motion for reconsideration.

Because the Court held that Mayweather was not seeking reconsideration based upon an intervening change in the law or on account of new evidence and was, instead, arguing that Court erred in applying the law, the Court summarily denied the motion.

Specifically, the Court held:
Defendants’ motion to reconsider seeks to relitigate matters previously decided by the court and appears to be based largely on their displeasure with the court’s prior ruling.  Accordingly, Defendants’ motion is at odds with Baker and Westinghouse and is therefore inappropriate. For the foregoing reasons, plaintiff’s motion for reconsideration is denied. 
One point to note:  disagreeing with a judge's ruling and asking the same judge to reconsider his decision because you think he got it wrong on the law is seldom going to go well.  That is why there is the ability to appeal down the road.

Fight Lawyer

Monday, September 13, 2010

Not Everything In The Legal System Has Gone Wrong For Floyd Mayweather, Jr. Lately

As Kevin Iole describes over at Yahoo! Sports in his article, Mayweather living on the edge, with Mayweather's recent Pacquiao tirade and his recent reported arrest on charges of grand larceny as part of a domestic violence case, things have been going downhill outside of the ring for the boxing phenom recently. 

As Kevin Iole notes, however, the contrast between the boxer's apparent control in the ring with his lack of control out of the ring is nothing new:
Mayweather is the epitome of calm and grace in the ring, a wise and patient boxer who rarely makes the wrong move and is always completely in control.
It’s outside of the ring where he seems to lose control. He’s no stranger to the court system in Nevada and he’s no stranger to domestic violence charges. Both of the women who have borne him children, Melissa Brim and Josie Harris, have accused him of assaulting them.

He was acquitted of felony domestic battery against Harris in 2005 when she recanted her prior allegations and called Mayweather 'a teddy bear.' He had two misdemeanor battery convictions involving Brim.
Well despite these latest issues, his defamation lawsuit with Pacquiao, and his other legal issues that I posted about in "Mayweather and WWE Stuck In South Carolina Court In Copyright Dispute Over Song “Yep” and "Mayweather Promotions Allegedly "Evicted" From its Rented Office Space and Facing Lawsuit For Unpaid Rent," it appears that at least one judgment went "Money's" way -- well sort of.

On August 4, 2010, Judge P. Kevin Castel of the United States District Court for the Southern District of New York entered a final default judgment (available via Pacer) in favor of Just For You Entertainment and against Jeffrey Whitters p/k/a "Freck Billionaire," "Philthy Rich Records," and Mayweather Jr. jointly and severally n the amount of $6,673.04.  

According to the New York Post (I have not seen the complaint), the Crux of Just For You Entertainment's complaint was that Mayweather had allegedly poached the Long Island management firm's rapper for his "Philthy Rich Records" label and Just For You was seeking $750,000 in damages. 

According to the New York Post article, at the inquest on damages:
The judge approved just a handful of [Just For You] expenses, including $3,490 to produce demo tapes and $322 to rent a boat in Miami for a video shoot.  Castel also signed off on a $480 bill at the swanky Le Parker Meridien hotel in Palm Springs, Calif., and a $111 tab at a Red Lobster restaurant during a trip to meet with record execs in Los Angeles.
Given that Mayweather had a judgment entered against him you may be asking why I say this case went Money's way.  I say this because had Mayweather appeared in the action and answered the complaint, his legal fees defending the action alone would have certainly exceeded the amount of the judgment.


Fight Lawyer

Friday, September 10, 2010

California Court of Appeal Rules That Charles David Lewis, Jr.'s (aka "Mask") Children's Mother Should Administer His Estate

While the recent acquisition of TapouT has been in the news, I came across an interesting appellate decision concerning the estate of the late Charles David Lewis, Jr. aka "Mask."

Basically, as set forth below, the "Public Administrator" in California, an elected official, petitioned to be the administrator of the late Charles David Lewis, Jr. aka "Mask," estate and attempted to supplant the mother of Lewis' two children, Diane Larson, who lived with the two minor children in Illinois, from acting as administrator of the estate. 


As set forth in this decision on May 6, 2010 by the Court of Appeal for the State of California, Fourth Appellate District, Division Three, in the matter of the Estate of Charles David Lewis, Jr., Deceased, John S. Williams, as Public Administrator, etc., Petitioner and Respondent v. Diane Larson, Objector and Appellant, the following took place in the proceedings before the lower court:
Also on April 7, the public administrator petitioned for letters of special administration. His petition stated decedent was believed to own a 28 percent interest in 'TapouT LLC,' a successful clothing and marketing company 'associated with the sports of mixed-martial arts and ultimate fighting.' Media reports suggested the value of that interest exceeded $10 million. Decedent was also thought to have substantial bank accounts, securities, 'valuable automobiles (including a Porsche Turbo S and a Bentley) and potentially valuable intellectual property rights.'
The next day, Larson petitioned for letters of special administration. Larson stated the minors were decedent's sole heirs and she was their biological mother and legal guardian. Larson submitted a brief stating that under Illinois law, she could not be appointed the minors' guardian since she is their living, custodial parent currently caring for them. The court responded to the competing petitions by appointing the public administrator as the special administrator of the estate, and later extended the letters of special administration through May 13. Prior to the May 13 hearing on the petitions, Larson reported that an Illinois court had appointed her the legal guardian of the person and estate of each minor, and that both minors had nominated her to act as administrator of their father's estate.


At the May 13 hearing, the public administrator argued he was 'better suited to handle' the large, 'complex' estate. Shortly before his death, decedent had stated his net worth to be '15 million dollars, and his annual income [to be] 1.5 million dollars.' The estate required 'a lot of leg work to track down the assets,' such as taking custody of the cars. The public administrator had 'three attorneys assigned to this case,' and 'a team of investigators and professional fiduciaries . . . .' The public administrator was local, whereas Larson lived in Illinois. The public administrator advised the court that section 8464 gave the court the discretion to appoint as the estate's administrator either the minors' guardian or 'another person entitled to appointment.'

Larson argued for appointment as the estate's administrator because she is the minors' guardian. She asserted there was no conflict between the children and her. Larson proposed that she be bonded in the amount of $750,000, arguing such sum was reasonable because the cars were 'heavily encumbered.' The court asked why Larson initially sought a bond of only $10,000. Larson replied that, at that time, she 'had no idea what the estate was,' but knew of her duty to report any additional assets marshaled. She argued she was qualified, is bondable, and had competent experienced counsel; moreover, the 'two sole heirs want their mother to take care of it.' She asked the court, in exercising its discretion, to 'consider what would best benefit the children.'


A potential creditor argued in favor of the public administrator administering the estate and its litigation with her. She stated the previous '$10,000 in assets reported [by Larson had seemed] to be fraudulent on its face.' She stated she 'would prefer someone who is appropriately bonded, who is local, and who can quickly get a hold of these assets and make the most out of them so that creditors like [her], who will have very sizeable claims against the estate, can ultimately be paid.'

The court took the matter under submission. After reviewing the moving and opposing papers, the court approved the public administrator's petition, appointed him as the estate's administrator, and denied Larson's petition.  
Ultimately, the Court of Appeal reversed the lower court's decision.  Specifically, the Court of Appeal held  as follows:
The court's order must be reversed because, in the absence of a finding that Larson was not competent to act as personal representative, the court lacked statutory authority to appoint the public administrator, instead of Larson, to administer decedent's estate and thereby abused its discretion under section 8464. (In re St. John’s Estate (1937) 8 Cal.2d 175, 176-177) [court's order appointing administrator reviewed for abuse of discretion].). 
From the Orange County docket, Kaya Lewis (who may be the sister of the "Mask"--the link says "D" Lewis and the docket says "C" Lewis) is listed as an interested party and, among the "Claimants," Charles D. Liddell is listed.

Fight Lawyer

Bellator Files A Motion to Dismiss Zuffa's Complaint

Following up on my posts, "My Take on Zuffa's Lawsuit Against Pavia and Bellator" and  "Bellator Removes Zuffa's Nevada Action to Federal Court," on September 9, 2010, Bellator filed a motion to dismiss Zuffa's complaint in the Pavia action for lack of personal jurisdiction.

The crux of Bellator's motion is that the courts in Nevada do not have personal jurisdiction over it because:
Bellator is not authorized to do business in Nevada.
Bellator is not and never has been licensed in Nevada, nor has it ever applied for a license in Nevada.

Bellator has no offices in Nevada.

Bellator owns no real property in Nevada and has no bank accounts in Nevada.

Bellator has never promoted an MMA event in Nevada.

Bellator has never advertised in Nevada.

Bellator has entered no contracts with any person or entity based in Nevada.

Bellator sells no merchandise in Nevada and conducts no other business in Nevada.
Specifically, Bellator argues that general jurisdiction is not appropriate because:
Bellator's only contact with Nevada consists of the occasional televising of MMA events that are broadcast on channels that can be viewed in Nevada as well as other states, and the accessibility of its website to Nevadans. This type of contact comes nowhere near the 'substantial' or 'continuous and systemic contacts' required to approximate Bellator's 'physical presence' in the State of Nevada to warrant the exercise of general jurisdiction over Bellator.
In this regard, Bellator compares this case to Zuffa, LLC v. Showtime Networks, Inc., and ProElite, Inc. d/b/a Elite XC, a case in which Bellator asserts "[t]his Court found that Showtime's broadcasting of events in Nevada could not be imputed to ProElite as ProElite's contacts with Nevada, and that ProElite's website by itself was not enough to establish general jurisdiction. [] Said the Court, '[a]side from ProElite's website, there is no evidence of other traditional contacts that ProElite has had with the forum. Without such evidence, the Court finds that general jurisdiction does not exist.'"

Bellator also argues that the Court's assertion of specific personal jurisdiction over Bellator would be unconstitutional.  Bellator sets forth what it believes to be the test for specific jurisdiction as follows:
'(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws. (2) The claim must be one which arises out of or results from the defendant[']s forum-related activities. (3) Exercise of jurisdiction must be reasonable.' (internal citation omitted) 
It then argues that these factors weigh against a finding of specific jurisdiction.  Finally, Bellator argues that the Court's exercise of jurisdiction over it would not be reasonable.

A couple of points to note. 

First, Bellator argues that it does no business in Nevada, but I wonder how many fighters it has signed in Vegas and how many sponsors it deals with in Vegas--my guess is that there would be at least some.  Whether this is enough to support general jurisdiction would depend on the amount etc. 

Second, Bellator argues that the actions complained of have nothing to do with Nevada because it argues that the "one" alleged email to Pavia originated in Chicago and went to California.   However, as alleged in the Complaint, Pavia allegedly responded to the email for the so-called seminal documents by texting that he was "'still I [sic] Vegas.'" [Note, Pavia and MMA Agents answered the Complaint on September 9, 2010 and in the answer they admit the allegations concerning this text message.]

Moreover, Bellator's argument that it "had no reason to know that even if its actions were harmful to Zuffa that the harm would be felt in Nevada" because "Zuffa operates its business as a 'leading promoter of Mixed Martial Arts (MMA) contests ... in the world'" seems particularly weak.  It seems highly likely that Bellator knew that Zuffa was based in Nevada and that its contracts were likely drafted and executed in Vegas.

Finally, and as an aside, in its brief in support of the motion, Bellator does take the opportunity to address what it claims "really" happened and what the email at issue in the complaint was describing:
However, if this case proceeds to trial, Bellator will show that what actually prompted the simple request from Rebney to Pavia was not the sinister plot Zuffa has alleged but rather a straightforward desire for basic information that Pavia was able to provide. Moreover, the result of that one e-mail exchange was not the widespread sharing of confidential information as alleged by Zuffa. Instead, very limited information was provided by Pavia to Bellator, and Bellator is prepared to show that none of the information sent by Pavia contained any confidential, proprietary or trade secret information. Moreover, Bellator has taken no action with respect to any of the documents obtained. Zuffa has unfairly taken one misleading e-mail and used it as the premise for a far-reaching Complaint seeking punitive damages and injunctive relief against Bellator, one of its primary competitors. What's worse, Zuffa's Complaint acknoweldges [sic] that Zuffa does not even know what documents Bellator allegedly obtained and merely surmises that Bellator must have been provided with all documents any UFC fighters could have made available to Pavia. []  Zuffa's claims are at worst factually defective and at best afford Zuffa no basis for any damages or other relief against Bellator.
Fight Lawyer

Thursday, September 9, 2010

Tike (hq-streams.com) Stipulate to Permanent Injunction in Zuffa Streaming Action

Following up on my post, "Update on Zuffa hq-streams Dispute -- Zuffa Attempts to Serve Papers At A Parking Lot," and related earlier posts, on September 8, 2010 the parties filed a "Stipulated Permanent Injunction and Dismissal with Prejudice."

As set forth in the stipulation, and despite the difficulties Zuffa had serving Tike, i.e. the fact that it attempted service in a parking lot, "Tike acknowledges receiving notice of the lawsuit and copies of all pleadings and documents filed in this manner, and does not contest or dispute the validity of service."

Further, the stipulation provides that "Tike acknowledges that he created the 'hq-streams' website in question and has copied, manipulated, adapted, reproduced, uploaded, distributed, shared, sold and/or displayed Zuffa's Copyrighted Broadcasts or used the UFC® Marks in any manner, or has permitted others to do so."

In the stipulation, the parties state that they have "agreed to resolve their dispute, and in doing so, Zuffa and Tike, have agreed to settle the instant matter and have agreed that Tike shall enter into a Stipulated Permanent Injunction," which provides in relevant part as follows:
A. Tike and his agents, servants, employees and/or all persons acting in concert or participation with Tike are prohibited from copying, manipulating, adapting, reproducing, uploading, distributing, sharing, selling or displaying any of Zuffa's Copyrighted Broadcasts and are prohibited from copying, manipulating, adapting, reproducing, uploading, distributing, sharing, selling or displaying UFC 118 in any manner;
B. Tike and his agents, servants, employees and/or all persons acting in concert or participation with Ahmed [I have no clue who or what Ahmed is and so assume it is a typo and it should be Tike] are prohibited from copying, manipulating, adapting, reproducing, uploading, distributing, sharing, selling or displaying any of Zuffa's future copyrighted broadcasts in any manner;
C. Tike and his agents, servants, employees andlor all persons acting in concert or participation with Tike, are prohibited from using the UFC® Marks or confusingly similar variations thereof, alone or in combination with any other letters, words, letter strings, phrases or designs, in commerce or in connection with any business or for any purpose whatsoever (including, but not limited to, on websites, in domain names, in hidden text and metatags) . . .

The judge will likely enter the proposed order effecting the parties settlement.

Fight Lawyer

Wednesday, September 8, 2010

Update: TapouT, PEM Group, the SEC, Danny Pang and the Authentic Brands Acquisition

The big news of the day was the reported acquisition of TapouT by "Authentic Brands with backing from Leonard Green, the billionaire investor whose firm owns stakes in Sports Authority Inc. and Whole Foods Market Inc."

Lost in the news, however, is any explanation concerning why TapouT was sold, whether the acquired entity has worked out any (continued) relationship with Zuffa going forward --a critical component of any TapouT revenue stream I would imagine, and, of most interest to me, whether the acquisition has any connection to the SEC action against Danny Pang and PEMGroup, an Irvine, California based private equity firm that TapouT "secured a multimillion-dollar line of credit from."

Here is the relevant chronology from the SEC action as it relates to PEMGroup, Pang, and TapouT (all of these documents are publicly available via Pacer)

On April 24, 2009, the SEC filed a complaint in the United States District Court for the Central District of California for alleged violations of the federal securities laws against defendants Pang, Private Equity Management Group, LLC and Private Equity Management Group, Inc. 

Thereafter, on August 4, 2009, the Court entered a Preliminary Injunction and Orders: (1) Freezing Assets; (2) Appointing a Permanent Receiver; (3) Repatriating Assets; (4) Requiring Accountings; (5) Prohibiting the Destruction of Documents; and (6) Surrendering the Passport of Pang. 

In September 2009 "Danny Pang committed suicide by taking an overdose of a combination of painkillers and other drugs, the coroner's office in Orange County, Calif., concluded."

On March 3, 2010 the Court entered an Order approving the "sale of the following parcels of personal property identified in the moving papers by public auction, privately negotiated sale, or any other method that he [the receiver] determines is reasonable and appropriate, with such sales being pre-approved and automatically confirmed upon closing:
              
        *                      *                       *
(7) Revolver, and two Term Loans to, Equity Ownership in, and Warrants to purchase shares from, TapouT, LLC and/or Fight Industries, LLC. These companies manufacture and sell clothing and accessories for extreme fighting and mixed martial arts."
As set forth in Exhibit B to the Receiver's Eighth Status Report; Declaration of the Receiver, Robert P. Mosier, the Loans to Tapout included the following:  $5,000,000 "Revolver Loan"; $2,500,000 "Term A Loan", and a "Fight Industries Term Loan 'B'" in the amount of $500,000 (while the amounts in the Exhibit are set out in thousands, from the total and the detail provided in the Status Report it is clear that the numbers in the spreadsheet are in the millions). 

In addition, the filing provides that there were "[t]hree term loans to the Founders of TapouT" in the amount of $500,000. 

According to the Exhibit, the Revolver and Term A loans were paid off in April 2010 and the "B" loan was paid off in February 2010.  According to Exhibit B, the founder loans were paid off in Fall 2009.

Given the timing of the SEC action against Pang and PEMGroup, the Order of the Court in March 2010 permitting the sale and disposition of the TapouT property possessed by PEMGroup, and the fact that the bulk of the TapouT loans were paid off in April 2010, one has to wonder if the Pang SEC action has any connection to the acquisition reported today, i.e. did the debts of TapouT to PEMGroup lead to the sale.  Even if it didn't, what happened to the "equity interest" that PEMGroup reportedly held in TapouT.

To be continued...

Update

While the reported fact that "[l]ast year, TapouT raked in $200 million in annual revenue -- more than 16 times its $12 million revenue in 2006," if accurate, could easily explain how TapouT paid off the bulk of its loans from PEMGroup in April 2010, I took a look around to see if there was any news around that time that might have a bearing on TapouT's decision (and/or ability) to pay back the loan amounts then.

I came across a number of articles from July 2010 discussing an "expanded licensing agreement with sportswear marketer TapouT" and Li & Fung Ltd., which is reportedly "the biggest supplier to retailers including Wal-Mart Stores Inc. and Target Corp."

In fact, according to an August 12, 2010 Li & Fung Ltd. Press Conference presentation it appears that the TapouT "expanded" licensing deal took place in April 2010, i.e. around the time that the $7.5M revolver and Term A Loan were paid off according to the Court filings.

More to come...

Fight Lawyer

Friday, September 3, 2010

Mikey Burnett Lawsuit Heading to A Settlement Conference

Following up on my post, Mikey Burnett Lawsuit From 2008 Relating to His Alleged Injury On Season Four Of The Ultimate Fighter Still Pending, on September 2, 2010 United States Magistrate Judge Robert J. Johnston of the United States District Court for the District of Nevada entered an order extending the discovery deadlines in the case for sixty days so that the parties could participate in a settlement conference.

As set forth in my previous post:
As you may recall, Mikey Burnett was a Season Four participant on the Ultimate Fighter (the "Comeback") who allegedly suffered a spinal injury while the show was in production and later sued TufGuy Productions, Inc., which produces the Ultimate Fighter, Ultimate Fighting Productions, LLC, Zuffa, and AIG, which allegedly insured him under an "accident" policy. Burnett has asserted claims for negligence, breach of contract (against AIG), and breach of the implied covenant of good faith and fair dealing (against AIG).
As set forth in a Minute Order dated August 30, 2010, the settlement conference before the Magistrate Judge is now set for September 21, 2010. 

For what it's worth, Tufguy Productions, Inc., Ultimate Fighting Productions, LLC, and Zuffa, LLC's motion for summary judgment --discussed briefly in my earlier post -- is still pending and fully briefed. 

I highly doubt we will see a decision on the motion until after the settlement conference because the judge is unlikely to waste judicial resources and resolve a motion that could be rendered moot if the parties reach a settlement and, perhaps more importantly, if he granted the motion Burnett would lose leverage in the settlement negotiation as well as a contributing party to any potential settlement payment.

Fight Lawyer

Update on Zuffa hq-streams Dispute -- Zuffa Attempts to Serve Papers At A Parking Lot

As set forth in my post, Zuffa Gets Its Temporary Restraining Order Prohibiting Stream of UFC 118 at hq-streams.com, Judge Mahan of the United States District Court for the District of Nevada set a hearing for Zuffa's preliminary injunction motion for today at 10 a.m. 

According to the docket, defendant didn't file an opposition to the motion for a preliminary injunction, but Zuffa still put in a reply.  In the reply, Zuffa claims as follows (emphasis added):
Plaintiff served notice of the present lawsuit on Defendant via email on August 26,2010, in compliance with the temporary restraining order.  []  Upon receipt of the notice, Plaintiffs counsel's office received a response, presumably from Defendant, stating 'Sir We are not doing no UFC events nor will we ever do it again.'
Zuffa attached this email to its declaration in support of the motion.

Zuffa also filed an "affidavit of due diligence" from what appears to be a process server.  In the affidavit, the process server indicates that she was unable to serve the papers.  She also notes as follows:  "Supervisor [] 'Doe' stated that Subject is not known at said location. Location is a parking lot named 'Interpark.'

Given that defendant didn't oppose the motion for a preliminary injunction and given that Zuffa appears to have taken reasonable efforts to serve the papers (even if it was at a parking lot), Zuffa will likely get its preliminary injunction this afternoon.

Fight Lawyer

Thursday, September 2, 2010

Boxing Photographer Sues MSG and Top Rank (among others) For Allegedly Discriminating Against Him Based on His Race

On August 31, 2010 Peter Pharaoh filed a lawsuit in the New York State Supreme Court against Ed Keenan, Events Market Media Group, Top Rank, Inc. d/b/a Top Rank Promotions, Inc., and Madison Square Garden for alleged violations of the New York City Human Rights Law Section 8-107.

According to the complaint, Pharaoh is a "well qualified black photographer who photographed boxing events at various venues around the country for several years" and "had received press credentials for numerous boxing events at defendants events around the country over several years." 

Plaintiff alleges that "Ed Keenan and events Market Media Group were duly authorized agents and employees of the defendant Madison Square Garden and the other defendants herein hired to provide public relations and publicity for defendant Madison Square Garden’s boxing events and to distribute press credentials for defendant Madison Square Garden’s boxing events."

The crux of plaintiff's complaint is that he was allegedly discriminated against by defendants based on his race because defendant Kennan allegedly stopped issuing him press credentials for MSG after he showed up to boxing event with a white woman.  Plaintiff alleges that MSG is a place of "public accommodation" as defined in the New York City Human Rights Law.

Further, plaintiff alleges "upon information and belief defendant Keenan acting on behalf of the other defendants has discriminated against plaintiff and other black photographers because they were black and has refused to issue them press credentials in violation of the provisions of the New York City Human Rights Law Section 8-107 Subdivision 4."
 
Plaintiff seeks "judgment for damages against the defendants herein, in a sum of Five Million Dollars ($5,000,000.00), a declaratory judgment ordering defendants to provide him press credentials to defendant boxing events pursuant to the provisions of the New York City Human Rights Law, together with legal fees and the costs and disbursements of this action."
 
For those interested, New York Human Rights Law Section 8-107(4) provides in relevant part as follows:
 
4. Public accommodations. (a) It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation because of the actual or perceived race, creed, color, national origin, age, gender, disability,
marital status, partnership status, sexual orientation or alienage or citizenship status of any person directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, or, directly or indirectly, to make any declaration, publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place or provider shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status or that the patronage or custom of any person belonging to, purporting to be, or perceived to be, of any particular race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status is unwelcome, objectionable or not acceptable, desired or solicited.

Fight Lawyer

Wednesday, September 1, 2010

Tuff-N-Uff and Righthaven LLC Settle Their Copyright Dispute

Following up on my posts, Tuff-N-Uff Productions Sued for Copyright Infringement and More on Tuff-N-Off Litigation and Bloggers Beware, yesterday, Tuff-N-Uff and Righthaven engaged in settlement discussions and resolved their dispute.

As set forth in my earlier post, the dispute involved the alleged publication of a Las Vegas Review Journal article on the Tuff-N-Uff website:
Tuff-N-Uff Productions, Inc. and its President, Secretary, Treasurer and Director, Barry Meyer, have been sued for copyright infringement by Righthaven, LLC over a March 2, 2010 article appearing in the Las Vegas Review-Journal concerning a Tuff-N-Uff fight that Tuff-N-Uff then, allegedly, posted on its website.
As set forth in my "Bloggers Beware" post and in this article in the Las Vegas Sun, "Some targets of Righthaven lawsuits fighting back," this action for infringement by Righthaven was not its first or its last:

Righthaven’s procedure has been to 'troll' or find an infringement of an R-J copyright to a specific story. It then buys the copyright for that story from the R-J’s owner, Stephens Media LLC, and then sues the infringer — all the while continuing to troll for additional violations.
On June 25, 2010, the Clerk of the Court entered a default judgment against Meyer and Tuff-N-Uff for failing to respond to the complaint.  One day before the Clerk entered the default judgment, Meyer and Tuff-N-Uff moved to dismiss the complaint arguing, essentially, that Righthaven lacked standing to pursue its claim for infringement because it failed to demonstrate ownership over the copyright in the article in question when Tuff-N-Uff allegedly re-posted the article to the Tuff-N-Uff website. 

Basically, because Tuff-N-Uff allegedly re-posted the article before Righthaven had been assigned the rights to the copyright in the article, Tuff-N-Uff was arguing that Righthaven "fails to show ownership of a valid copyright at the time of infringement [and] lacks standing to sue for any infringement that occurred prior to assignment of the copyright." 

According to the Las Vegas Sun article referenced above, this argument is has apparently been made in more than one case:  "[s]ome of the defendants are arguing that Righthaven lacks standing to sue them because Righthaven didn’t own the copyrights at the time of the initial infringement."

Well, in opposition to the motion Righthaven argued that it had an assignment that included any claims that the LVRJ would have had for infringement prior to the assignment.  Therefore, it argued it had standing to assert an infringement claim that predated the assignment.  Assuming the assignment existed and said what Righthaven claimed (it was supposed to be attached to the opposition, but I did not see it), Righthaven's argument was undoubtedly correct.

After the default judgment was entered, Meyer and Tuff-N-Uff also objected to the default judgment.

As set forth on the docket, after hearing argument on the motion to dismiss and the objection to the default judgment, the Court denied defendants' motion to dismiss and set aside the default judgment.

After he ruled, according to the docket:
After a brief recess by the parties to engage in settlement negotiations, Mr. Gibson advises the Court the parties have reached a settlement. The parties are instructed to file the Stipulation for Dismissal by 9/7/2010. In light of the settlement reached by the parties, IT IS FURTHER ORDERED the Defendant's Motion for Rule 16 Pretrial Conference is DENIED as moot.
As set forth in this article, Second Newspaper Chain Joins Copyright Trolling Operation, (hat tip Fightopinion.com), these lawsuits by Righthaven now number over 100 and continue to be filed against a variety of blogs and websites and usually settle for a few thousand dollars.  Presumably, this settled for an amount in the same neighborhood.

Again, bloggers and websites beware!

Fight Lawyer