Plaintiffs in UFC Antitrust Lawsuit file brief opposing Top Rank, Bellator and Golden Boy’s objections to use of documents

July 3, 2019

Plaintiffs in the UFC Antitrust Lawsuit filed an Opposition this past Friday to the objections of Bellator, Golden Boy and Top Rank from producing the use of “potential” confidential information at August’s evidentiary hearing.

The Plaintiffs hope to utilize deposition testimony from Scott Coker related to Coker’s prior employment at Strikeforce, a copy of a standard Golden Boy promotional agreement template with boxers and a single paragraph from the Expert Rebuttal Report of Plaintiffs’’ expert Dr. Andrew Zimbalist which displays Top Rank’s wage share for the years 2013 to 2016.  There is also additional financial information from each of the three parties which Plaintiffs contend is “granular information.”

Plaintiffs’ Oppo to Non… by on Scribd

A set of evidentiary hearings will take place the last week of August and mid-September to determine the evidence provided by experts in the Antitrust lawsuit.  Pursuant to a scheduling order, the parties have produced exhibit lists they intend to use for the hearing.  Objections and responses have now been filed with reply briefs coming soon.

In addition, Bellator and Top Rank have filed objections to the use of information that includes information.  As third-parties to this lawsuit (they are not a plaintiff or defendant in the Antitrust lawsuit), they have filed objections to preserve the confidentiality of the documents.

Plaintiffs point out the standard that Bellator and Top Rank must convince the Court is that there must be “compelling reason” to exclude the documents from use.  Described as a high burden by Plaintiffs they cite to the overarching public policy that there is an “assumption that the press and public have a presumed right of access to court proceeding and documents.”  The only instance in which a party could overcome the policy is if “closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

In arguing that Top Rank’s financial information which include the total annual revenues from 2010-2016 and average wage share are not commercially sensitive, they state that neither of the figures sought to use convey “granular, athlete-or event-specific information that could convey competitive advantage.”  Similarly, they suggest that the gross revenues from Bellator and Golden Boy would not provide a competitor advantage.

“Bellator and Golden Boy’s annualized gross revenues do not contain granular information that a competitor could potentially use to harm the Objectors because the figures convey no information that would enable a competitor to, for example, sign one of Objectors’ athletes, counterprogram Objectors’ events, or lure away Objectors’ sponsors.  If Objectors assert another type of harm, they have not articulated it and it is therefore waived.  Similarly, Objectors’ wage shares do not include information that could provide their competitors with an unfair advantage or put Objectors in a disadvantaged position in athlete negotiations or otherwise.”

Plaintiffs argue that Bellator’s annualized top-line revenues provide important context for assessing Zuffa’s dominant position in the market and wage share provides comparison regarding the class wide effects of Zuffa’s anticompetive Scheme.

With respect to the request to seal references to annual revenues and average wage share from 2010 to 2016, Plaintiffs argue that the information is “too old” to contain any competitive value.  Plaintiffs highlight the years in which each wants to seal their financial information from disclosure in arguing that the information is far removed from the litigation of today.

Bellator financial information:  2010-2016

Golden Boy financial information:  2015-2016

Top Rank financial information:  2013-2016

With Bellator and Golden Boy signing deals with streaming platform DAZN, Plaintiffs argue that the financial information is now obsolete.

Also, Bellator is asking to seal two passages from the deposition of Scott Coker.  Plaintiffs contend that there is not a compelling reason to do so.  Specifically, Coker reads from an email Zuffa produced that he wrote while he was Strikeforce president which is supposedly exemplifies Zuffa’s market share and its approach to competition.  The second passage asks the Court to seal identities of three principals in Strikforce’s parent company.

Finally, Plaintiffs claim that the Golden Boy standard contractual template is not a trade secret as it contains nothing specific or identifies an individual fighter.

Payout Perspective:

Top Rank, Bellator and Golden Boy will have a chance to respond to the Opposition Brief and argue the compelling reasons why the documents should remain confidential.  Alternatively, they might argue that the standard for exclusion is less than that proposed by Plaintiffs.  More likely, Bellator and Golden Boy will argue that the release and/or use of the financial information may provide a future template for competitors.  Regardless of how old the financial information is and despite any new partnerships, the information would be trade secrets that should not be disclosed to the public or utilized by Plaintiffs.  There is a lot riding on this ruling as Plaintiffs hope to use the information in late August for the expert hearings.  If not, it would present a big obstacle as they would have to find another way to present their evidence.  For Bellator and Golden Boy, the possible release of information might present more scrutiny on their company from its fighters and public as to the state of their finances as compared to prior statements of the company’s health.  MMA Payout will keep you posted.

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