Zuffa files Reply Brief seeking to include Silva testimony in Antitrust Lawsuit

October 23, 2019

Zuffa has filed its Reply Brief in its hopes of Judge Richard Boulware changing his mind with admitting testimony of Joe Silva in the UFC Antitrust Lawsuit.

During the evidentiary hearing of Joe Silva, Zuffa attorneys attempted to ask the former matchmaker about “wage share” but was shut down by Plaintiffs who objected to the testimony and Judge Boulware sided with them.  As a result, Zuffa could not provide Silva’s testimony that he did not pay fighters based on event revenues.  He also claimed in a Declaration submitted with Zuffa’s Motion for Reconsideration that indicated that he “did not know Zuffa’s event revenues” in negotiating athlete compensation.  He also noted in his declaration that he was never told about whether had a budget for athlete compensation nor Zuffa’s event revenues when he negotiated athlete compensation.

Zuffa Reply by Jason Cruz on Scribd

Zuffa argues that Silva was asked to testify regarding “facts within his personal knowledge.”  It did not ask Silva offer testimony regarding the economic concept of “wage share.”  Here, Zuffa tries to parse the testimony and separate expert testimony versus fact testimony.  Plaintiffs and the Court believed that Zuffa attempted to illicit expert testimony rather than factual information.  The Reply Brief asserts, “Zuffa’s counsel…asked Mr. Silva factual questions about whether he was ever instructed, or tried, to meet any sort of wage share target or whether any athlete ever asked to be compensated based on revenue from an event.”

Declaration of Joe Silva by Jason Cruz on Scribd

Also, since it argues that Silva’s testimony was factual, there was no duty to disclose testimony he might state regard wage share. This rebuttal addresses Plaintiffs argument that Silva had not offered any testimony in his deposition on wage share.  Zuffa also clarifies Plaintiffs claim that fighters would ask for a percentage of event revenue.  The athletes that had PPV clauses would receive a portion of the “marginal pay-per-view purchases at a particular event.”

Payout Perspective:

While Zuffa’s reply to the opposition filed by Plaintiffs is persuasive, it is still facing an uphill battle since the motion to reconsider the court ruling goes back to the Judge to determine whether he made a mistake.  Usually, to overturn a ruling, the moving party has to show that there was an error of law made by the Court and/or the Court did not consider legal precedent.  Thus, the prospects of the Court overturning its original ruling appear slim.  If the ruling does not go in Zuffa’s favor and the Court subsequently grants class certification, look for an appeal based on this potential denial of testimony.

More documents from UFC antitrust hearing reveal Joe Silva’s negotiations

October 10, 2019

More documents were reveled recently in the UFC Antitrust Lawsuit.  The documents reveal email communications between Joe Silva and managers regarding contract negotiations for fighters.  Overall, it would be hard to call it “negotiations” as the UFC flexed its leverage over fighters in making them capitulate.

In one exchange, Silva has a back and forth with the manager for Bang Ludwig when the current coach and former UFC fighter was coming up for new contract.

The crux of the negotiation was Ludwig’s manager attempting to get Silva to pay $18,000 to show and $18,000 to win.  At the time Ludwig was coming off of a split decision win in Germany.  Ludwig’s representative told Silva through email that he had spent out of pocket $4,000 for the fight in Germany.  In addition, he was experiencing monetary issues at the time.   Silva was dead set on $16,000 and $16,000.  He indicated that the win in Germany was a “gift” and that he could not reconcile paying Ludwig more than other similar situated fighters.

Ludwig’s manager had countered his $18,000 and $18,000 request with $17,000 and $17,000 but the email communication did not mean that Silva budged.  In fact, he did nothing but hold to his original offer.

In another email exchange with UFC fighter Ricardo Almeida, Ally Almeida, his wife acting as his manager attempted to negotiate the contract with Silva.

Silva offered a 6 fight deal with 2,000 incremental step-up in pay if he were to win starting at $20,000 and $20,000.  Almeida’s wife countered with $5,000 step-ups in pay if he won.  Also, she inquired about a shorter 3 fight deal.  Silva immediately nixed the conversation.  He indicated that he could only do a 6 fight deal because he wanted to ensure that they could properly build the fighter.  He did offer Almeida a $10,000 signing bonus. The below email highlights the offer.

Almeida decides to capitulate and accept the 6 fight deal.

Payout Perspective:

The email communications are helpful to see the type of negotiation going on with the company.  The fact is there was actual no negotiations going on as most were take it or leave it deals.  More of the emails submitted in discovery saw Silva providing fighters with new deals when going on the last fight of their contract.  These communications happened prior to a time when there were other options out there and fighters decided to fight out the terms of their contract.  Most of the examples offered by the Plaintiffs show that Silva would offer small raises with a $2,000 step in pay if the fighter won their fight.

The question for the case would be whether these instances showed anti-competitive conduct by a company with broad market power. Tough negotiating, or just not negotiating aren’t itself evidence of anti-competitive conduct, but it infers a course of conduct that Zuffa implemented which foreclosed competitive wages.  MMA Payout will keep you posted.

Plaintiffs in UFC Antitrust Lawsuit file Opposition to Zuffa’s appeal for use of Silva testimony

October 9, 2019

The Plaintiffs in the UFC Antitrust Lawsuit have filed an Opposition to Zuffa’s Motion for Reconsideration of the inclusion of testimony from Joe Silva.  The Court had sided with Plaintiffs in preventing Silva to testify about wage share at his evidentiary hearing last month.

Zuffa filed a Motion for Reconsideration seeking that Judge Boulware rethink his decision and allow the testimony and an additional Declaration of Joe Silva affixed to the motion.

Zuffa Motion for Reconsider… by Jason Cruz on Scribd

In turn, Plaintiffs filed an Opposition to the Motion which included a Declaration from Joe Silva which indicated that he did not know Zuffa’s event revenues when he negotiated athlete compensation, did not have a budget for athlete compensation or was ever told that he “was spending too much on athletes.”

Payout Perspective:

 From a practical viewpoint, unless the moving party can tell the Court that it overlooked legal precedent when it made its ruling, the motion will likely fail.  The reason is that it goes before the same person that made the initial ruling.  In all likelihood, the Judge is not going to switch course. This could be an issue that may be brought up on appeal if the Court denies (and it likely will) Zuffa’s motion.  While it was a little curious that the Court did not allow the testimony, it does come in line with the determination that Silva was not an “expert” witness but a fact witness with knowledge about how Zuffa paid its athletes.

Zuffa files Motion for Reconsideration regarding Joe Silva Testimony in UFC Antitrust Lawsuit

September 29, 2019

Zuffa has filed a Motion for Reconsideration from a Court ruling in the UFC Antitrust Lawsuit which sustained an objection and struck portions of the testimony of Joe Silva.  The former UFC matchmaker provided testimony in the UFC Antitrust in Richmond, Virginia this past Monday.

The Court took issue with the direct examination of Stacy Grisby, Zuffa’s attorney, asking Joe Silva whether he knew about wage share.  The Court sustained Plaintiffs’ objection citing that Silva had not previously testified to wage share and/or paying athletes based on Zuffa event revenues.  The Court also struck any testimony that Silva had given related to this.

Zuffa argues in its motion which asks the Court to reconsider its original ruling due to the fact that Plaintiffs had an opportunity to inquire about it during his deposition. Also, Zuffa claims that the Court had wanted to hear from Silva about his knowledge as to whether it had a practice of paying fighters based on event revenues and percentages.  Despite Plaintiffs’ claim that Silva was offering a lay opinion based on information that may need expert testimony (i.e. economic wage share), Zuffa argues that Silva’s testimony is based upon his own personal knowledge.

Payout Perspective:

It’s hard to think the Court overturns its own decision despite Zuffa’s assertion that the purpose of having Silva testify was premised upon his knowledge of what he new about how the UFC paid fighters.  Yet, it will be considered and appealable issue in the case that the Court grants Class Certification.  Notably, Zuffa has included the declaration of Silva which was likely included in the case the Court determines that Plaintiffs may have an opportunity to inquire about Silva’s knowledge.  The overarching issue here is preventing the strategy of unfair surprise on the part of a party.

Zuffa, Plaintiffs in Antitrust Lawsuit file supplemental briefs

September 17, 2019

On Thursday of last week, the parties in the UFC Antitrust Lawsuit filed supplemental briefing per the court’s invitation.  The filings represent what amounts to the closing salvo in support or opposition of class certification in the lawsuit.

The briefs highlight the expert testimony elicited by the parties through the evidentiary hearings that occurred in late August and mid-September.

In essence, there are four elements to determine class certification.

But, in my opinion, the case for class certification boils down to two things:

  1. Whether Plaintiffs’ methodology of regression is a valid way to determine that there was an anticompetive scheme by Zuffa in which it restrained and/or suppressed fighter earnings through the use of exclusive contracts and shutting down rival promotions.
  2. Whether Zuffa’s business practices were in fact anticompetitive. As Zuffa asserts, they may be dominant in the relevant market, but that doesn’t mean it violates antitrust laws.


Supplemental Brief – Plaint… by Jason Cruz on Scribd

Supplement Brief – Zuffa by Jason Cruz on Scribd

Plaintiffs highlight their briefing by maintaining the antitrust theory that Zuffa’s monopsony power in the relevant input market for MMA Fighter Services through acquisitions, exclusive contracts and coercion was an anticompetitive scheme which shut down rivals and impaired the market for fighter services.  As a result, this reduced fighter pay below competitive levels.  Additionally, Zuffa’s tactics as alleged by Plaintiffs harmed competition for promoting live MMA events “because by shuttering rivals and locking-up a must-have input (i.e., fighters), it was the only place for “major league” MMA.”

The four threshold elements in proving the need for a certification of a class action lawsuit are typicality, commonality, numerosity and adequacy.

Here, Plaintiffs argue that despite Zuffa’s claim that coercion to re-sign with the promotion by individual fighters give rise to individual claims due to the fact specific nature of each does not give special significance to the fighters’ claim.  Plaintiffs assert that it is the overall effect of Zuffa’s scheme is common of all potential class members. They argue that the commonality of class member claims is based on Dr. Singer’s ‘standard impact regression model’ which assessed pay for each Class member.  Second, Plaintiffs showed Zuffa maintained a pay structure, “such that any general suppression of Fighter compensation it achieved through its Scheme would have had a widespread effect across the Class.”  Plaintiffs argue that it’s the commonality threshold of the class action elements that Zuffa has issues.

As for the ‘wage share’ versus ‘wage level’ debate which has been the forefront of the battle of the experts, Plaintiffs claim that they only need to show that ‘wage share’ is a “plausible or reliable method and that it is common.”

They also include argument in support of Dr. Singer’s methodology of Foreclosure Share which measures the percentage of Fighters subject to Zuffa’s Exclusive Contracts in his relevant markets and submarkets.  The most notable criticism by Zuffa was the alleged weighting of the share of a relevant market based on assessing Zuffa and non-Zuffa fighter pools in the Foreclosure Share analysis.  But Plaintiffs cite the fact that Dr. Topel conceded that better ranked fighters generate more revenues and thus are more valuable to a promotion than other fighters and weighting is necessary.  Also, they cite to case law which states that weighting is standard in antitrust economics.

Plaintiffs claim that Dr. Topel offered ‘an entirely new argument at the hearing,’ citing that Dr. Singer’s variables in his impact regression undermined his results.

Finally, Plaintiffs defended Dr. Zimbalist’s “yardstick method” when assessing damages in his expert report.  As you may recall, Dr. Zimbalist’s expert report was criticized by Zuffa for its use of team sports leagues such as the NFL, NBA, NHL as well as Top Rank Boxing when assessing the level of damages available to Plaintiffs.

Conversely, defendants argue that if there was a purported monopsony, it was a legal monopsony.  Zuffa argued that Dr. Toepel’s rebuttal to Dr. Singer’s regression method was that a “regression measuring an effect on fighter share could not distinguish a competitive market from one with competitive restraints because a rise in revenue in either would decrease fighter share.”  Therefore, Dr. Singer’s methodology and conclusion regarding foreclosure share is rendered useless according to Dr. Toepel.  Zuffa argued that its expert Roger Blair confirmed Dr. Toepel’s conclusion citing that in a competitive market you can get “two very different wage shares or revenue shares.”

The thrust of Zuffa’s argument was that it was its business acumen and its achievement in a competitive market drove revenue for the company.  It paid fighters more than its competitors and that is why the labor supply remained robust.  They argue that even if Plaintiffs disagree, the regressions do not prove whether an effect on wage share resulted from a legal monopsony of the purported anticompetitive scheme the fighters claim.

Additionally, to disprove Dr. Singer’s report, Zuffa identifies articles within it that are contrary to what Singer purported claims.  Zuffa also suggests that Dr. Singer’s “foreclosure share” misinterprets the law.  They point to a section where Singer explains why he selected 30-month contracts as his method of foreclosure.  He cites case law but there is no case law to be found in that portion of Singer’s report. according to Zuffa.  Maybe more telling is a journal relied upon by Dr. Singer that Zuffa has learned is a fraudulent academic journal.  Zuffa states that it has named itself similar to a reliable academic journal to purportedly cause confusion.

Payout Perspective:

As one might expect, we see to differing ways of approaching the final briefing.  Plaintiffs must prove that its theory of regression is valid and Zuffa’s scheme was anticompetitive.  Throughout the first week of evidentiary hearings, it appeared as though Plaintiffs did well in proving this.  However, Zuffa did well in undermining the findings of Dr. Singer’s report by allegedly disproving his theory.  MMA Payout will keep you posted.

Judge advises parties in UFC Antitrust lawsuit to file additional briefing to determine class certification issue

September 10, 2019

Judge Richard Boulware issued a Minute Order on Tuesday advising both parties that he would like additional briefing due this Thursday night.  The brief appears to be the final arguments prior to his decision on class certification.

According to the order, Judge Boulware is allowing the parties to file one supplemental brief of 15 pages “for the Motion to Certify Class and the parties’ submission should include all citations to the record or expert reports expressly requested by the Court.”  The order went on to state that the parties had until Thursday night at 10pm to file the briefs.  Additionally, for plaintiffs, they
“must explicitly identify in their brief all theories of liability upon which they seek to proceed regarding class certification, including monopoly and monopsony theories.”

Payout Perspective:

It seems as though we are nearing the end of the presentation of evidence in determining class certification.  The court will hear two more experts this week and based on this piece of news, we may not expect Joe Silva to testify.  He was scheduled to testify during the first week of evidentiary hearings but was unable to attend.  The request for briefing was intimated during the first week of evidentiary hearings and it could be interpreted  We now may see this boiling down to a decision from Judge Boulware on class certification.

What happens next in the UFC Antitrust Lawsuit?

September 4, 2019

Last week the UFC Antitrust Lawsuit reached one of the most important milestones in this litigation journey as the two sides met in Judge Richard Boulware’s courtroom to discuss the expert testimony which may eventually decide whether or not the case goes forward.  So, let’s take a look at what has to happen before the parties proceed.

It was a good week for those interested in the finances of the UFC and we definitely gave you a primer of the testimony from Hal Singer, Robert Topel and Andrew Zimbalist.  For the most part, the Plaintiffs made their case via Dr. Singer’s testimony that his methodology of comparing fighter wage share (as opposed to wage level) was the best way to gage whether the market power obtained via Zuffa was procured via anticompetitive means.  On the other hand, Zuffa found themselves, for the most part, having a difficult time getting onto the same page as Judge Boulware and Dr. Singer had a much better time asserting the premise for his expert report than Dr. Topel.

Judge Boulware indicated at the outset that his decision to certify the class of plaintiffs in this case would be primarily based on the expert testimony he would hear.  Thus, he was not interested in extrinsic evidence, nor any impeachment methods via the deposition testimony of the experts.  The primary emphasis was based on Dr. Singer and Dr. Topel.

The testimony would help Judge Boulware come up with a decision on the class certification issue.  So, from here, where do we go?

When will a decision be made?

Unknown.  Judge Boulware could come up with an opinion this week, next week or next year. Judge Boulware has scheduled other experts in the case to testify mid-September as well as the possibility that Joe Silva (who was scheduled last week but could not testify) return to testify in Court.

Expect Judge Boulware to issue a written opinion on ruling on the Class Certification which will outline and then detail his reasons for granting or denying class certification.

Bear in mind two things.  Federal courts are extremely busy as they have a voluminous amount of cases that they must deal with that include criminal and complex civil issues.  Secondly, judicial opinions take time to draft.  It’s worthy to note that in this case Judge Boulware’s opinion denying Zuffa’s Motion to Dismiss came out in October 2017 when it was heard and denied the previous fall.  We could see a scenario where the Judge makes a decision but the parties must wait for the written order to make the appeal.


Yes.  There will be one.  If class certification is denied, Plaintiffs will appeal the decision most certainly as the case would come to an end if there is no class action.  If class certification is granted, Zuffa may appeal the decision based on the Court’s written opinion.  Through at least the first couple days of the evidentiary hearings it seemed that Zuffa was unable to connect with Judge Boulware in its assertion that Dr. Singer’s model was not accurate while the prevailing use of wage share to assess athlete pay is the dominant way to calculate this dispute.  The evidence through the evidentiary hearings will be the information that Judge Boulware will rely on to determine class certification. If Zuffa believes it was not given an opportunity to set forth its case during the hearing, we might see an appeal.

For those wondering, the appeal would go to the Ninth Circuit Court of Appeals in San Francisco where there is a panel of judges to review the appeal.  In most cases, the appeal is heard by a three judge panel.

So, what are the legal means to certify a class

As I’ve previously posted, last summer Plaintiffs filed a Motion for Class Certification which was opposed by Zuffa.

Rule 23 of the Federal Rules of Civil Procedure dictate the elements for which a Court may certify a class.  Many lawyers remember this through prepping for the Bar Exam.  The four elements are:

  • Commonality: The question of laws or facts must be common to each of the plaintiffs.  In this case, among the common issues is whether Zuffa implemented an anticompetitive scheme to suppress fighter wages.  Zuffa argues that Dr. Singer’s regression analysis shows that the fighters claims are not common and other evidence shows that the alleged conduct by Zuffa affected the fighters differently.
  • Typicality: The claims of the class representatives (the six name plaintiffs in this lawsuit) are similar to those that they seek to represent (according to plaintiffs, over 1,200 ex and current fighters that have fought under Zuffa contract.)  The most notable argument from Zuffa is that none of the named plaintiffs are currently fighting in the UFC and the claims are not typical of the current fighters contracted by the company.
  • Numerosity: There must be similarly situated plaintiffs that a class action is necessary.
  • Adequacy: The attorneys bringing the class action must be adequate for the complexity and volume of the lawsuit. They must not have a conflict of interest with the proposed class and are competent to purse the interests of the proposed class.

What if Class Certification is Denied and Plaintiffs decide not to appeal

It does not foreclose Zuffa from being sued by individual fighters but the stakes would be higher and more expensive for a fighter and their lawyers.

One might see this going to multidistrict litigation.  The one aspect of this is that fighters may file their lawsuit where they reside although Zuffa would argue that the lawsuit must be filed in Las Vegas where the company is headquartered.  Multidistrict litigation are federal cases where “civil actions involving one or more common questions of fact are pending in different districts.”  The process facilitates the discovery process for federal courts where there are hundreds of plaintiffs in different federal courts. It differs from class-action cases as those involve a single lawsuit whereas multidistrict litigation involves multiple lawsuit filed by different parties.

From the outset, multidistrict litigation or any single lawsuit against Zuffa is much more of a gamble for an individual fighter and their attorney to spend the resources to file a lawsuit against Zuffa.  Based on the enormous volume of documents, number of attorney and experts hired for this lawsuit, one fighter undertaking this would bankrupt themselves before an outcome.

Did the Plaintiffs win last week?

They didn’t lose but its hard to tell if they have actually won.  Remember, even if the Judge grants the motion to certify the class, only one hurdle has been completed.  They still must overcome a potential appeal of the ruling, a motion for summary judgment and then win at trial.  Yet, its clear that Dr. Singer connected with Judge Boulware.  Whether or not that means that Judge Boulware agrees with Dr. Singer and plaintiffs is the bigger question.

We will keep you posted.



Winners and Losers through 2 days of the UFC Antitrust Lawsuit Expert Hearings

August 28, 2019

After the first two days of the evidentiary hearings in Las Vegas, MMA Payout has assessed some of the winners and losers of one of the more anticipated hearings that may shape the industry of mixed martial arts.

Here were my observations through the second day.  I would also recommend Paul Gift and John Nash’s articles on this as well.  Also, the Show Money exclusives.

Winners:  Judge Richard Boulware

It’s clear that Judge Boulware is in control of how he wants to run the week and what he wants to hear.  Judge Boulware’s credentials are impeccable.  He went to Harvard College then to Columbia Law and clerked for Judge Denise L. Cote in the Southern District of New York.  For those not knowing, the Southern District of New York is a very well-known sect where some of the most salacious, sexy and well-known cases are filed.  Judge Cote dealt with the federal securities and ERISA class-action lawsuits brought by former employees or investors in WorldCom and Arthur Anderson and investment banks back in the mid-2000s.  Although not confirmed independently, this would have been about the same time that Judge Boulware would have been clerking.

Rather than joining a law firm after his clerkship, he dedicated his legal practice to Federal Criminal defense.  While his background might be criminal law, Judge Boulware indicated that he had some familiarity with regression theory which would be displayed in the first two days of the testimony as it was clear he was following Dr. Singer’s model better than Zuffa.  While his understanding should not be seen as an admission that Dr. Singer’s model is valid, he seemed well-versed with the mechanics of it.

With a criminal defense background, he is well-versed in cross-examination and how to illicit testimony.  This came into play early on in the first two days.

It’s notable that he is a very even keel Judge and doesn’t lose his patience even when he is talked over or challenged.  The one warning given to the parties about talking over him was a very stern, yet polite warning.  He is very engaged in the testimony to the point that he had to be reminded of taking a lunch break on the first day.

Winners:  Hal Singer

Although challenged on cross-examination, Dr. Singer came across as a calm expert defending his report while attempting to aid the Court in why he did what he did and the outcome.  Clearly, it’s his purpose to be an advocate for his position and was unwilling to concede certain items suggested by Zuffa’s attorneys on the cross-examination.  At times, he did appear too willing to provide Judge Boulware with explanations, but overall his testimony provided the Plaintiffs with a good shot at clearing the hurdle of Class Certification.

Winners:  Kyle Kingsbury, Jon Fitch and Cung Le

Kingsbury, Fitch and Le attended the hearings.  Kingsbury and Fitch sat through the first day while Le joined them on Tuesday.  With the high-level economic theory added to the legal aspects of the hearing, even lawyers (ahem) would have got bored by this testimony.

Winners:  Kingsbury’s Vans

The former UFC fighter wore a sweet pair of vans with his suit on Tuesday.  Not to be outdone with his superfanny pack on Monday.  But I am a sneaker guy.

Not really a Loser, but it wasn’t winning either:  Zuffa

The cross-examination of Dr. Singer did not flow well and you might infer that Zuffa was not getting its points across that it had hoped.  More so, Judge Boulware seem unimpacted by the questions asked by Zuffa to Dr. Singer.

Obviously, Zuffa could turn this around with Dr. Topel’s testimony, its other experts and maybe Judge Boulware may just not buy Dr. Singer’s model in the end. But, from the first two days it was not going the way Zuffa would have liked.

Loser:  Joe Silva testimony

The news that Silva would not be testifying on Thursday as originally scheduled put a damper on the week as it would have pitted him in Court with the likelihood of Kingsbury, Le and Fitch gazing at him during questioning.

Losers: Zuffa, Top Rank and Bellator

Judge Boulware stated at the outset that since this would be a dispositive motion  (Class Cert will decide whether the case will continue or end) the expert reports would be unredacted for all to see.  Zuffa’s counsel Stacy Grigsby was tasked by her client to argue that the information contained vital business information which she contended must remain under seal, unavailable to the public and mainly for the competitors.  Judge Boulware asked for an example, which Grisby obliged but was put down swiftly by the judge.

Similarly, Bellator appeared to argue about its financial information was confidential.  But it was a losing argument although Judge Boulware gave an assurance that the granular financial information should not be probed based on the context of the hearings and what testimony he wanted.  He would not grant a seal on the financials because of the overarching explanation that since he would render an opinion, he would not grant an order sealing any information in the expert reports.  So, although Bellator lost, the Judge didn’t want them to feel like they were really exposed.

More of a Loser:  Top Rank

The belief that your company’s private information may be compromised seemed like a big enough deal to object as a non-party but to not show up in Vegas when it’s less than an hour plane ride away tells the Court it really doesn’t matter.  Appearing telephonically for a hearing of this magnitude is a bad look.  It tells the Court that this issue is not of great importance.  Nevertheless, Top Rank took issue with ONE footnote in Andrew Zimbalist’s economic expert report.  Top Rank was not heard until after Grigsby’s and Bellator’s arguments to the Court were made.  At that point, it was clear that Judge Boulware would not seal anything.

Yet, Top Rank continued with its argument to which Judge Boulware was quick to respond with a resounding denial of the request.

Loser: Slide presentations

The Court did not see Plaintiffs or Defendants full presentations although they were brought up out of order.  While we gleaned a lot of the financial information throughout the day, it would have been nice to see the presentations as they were to be shown.

Loser:  Paper

Despite Judge Boulware having a paperless Courtroom, there were tons of boxes and trial binders brought by both sides.  One of the funnier moments at the beginning occurred when Plaintiffs’ counsel Eric Cramer attempted to provide Judge Boulware with a hard copy but the judge did not want to do anything with it.

The show will go on without me in Vegas, but keep following John Nash and Paul Gift on ongoing updates throughout the week.

UFC Antitrust Lawsuit Evidentiary Hearings Day 2 finishes up with Dr. Singer testimony

August 27, 2019

The UFC Antitrust Lawsuit evidentiary hearings went into its second day in Las Vegas at the Federal Courthouse with the finish of Dr. Singer’s testimony.

The beginning of the day finished up the cross examination of plaintiffs’ expert Hal Singer by Zuffa’s attorney William Isaacson.  Court started a little earlier than normal to accommodate the rather ambitious schedule for the parties.  Zuffa questioning of Dr. Singer lasted for about two and a half hours with the primary emphasis of drilling down on Singer’s modeling regression theory and the variables.

It is the regression analysis performed by Dr. Singer with the data obtained from discovery with which he concludes that Zuffa obtained market power through anticompetitive means.  The report indicates the estimated damages suffered by the anticipated plaintiffs’ class as a result.

While Zuffa was teeing up key arguments with Dr. Singer to be explained later, Judge Boulware was not willing to go down a path which might impeach or exclude the witness.  It was clear this was not the exercise this week was for from Judge Boulware’s point of view.  Rather, his main goal was to have Zuffa examine, critique and take issue with the modeling performed by Dr. Singer.  This included key issues with Dr. Singer’s foreclosure share, control and uncontrolled variables and how he implemented his model.  This played out several times throughout the morning when Isaacson attempted to show Dr. Singer several slides not in his report for the primary purpose of an ‘a ha’ moment where he would be later be shown to be wrong about his analysis.

From an outsider’s perspective, it was clear that the method implemented by Judge Boulware during the hearing interrupted the flow of the examination outlined and prepared by Isaacson.  At times during Monday’s cross-examination and into Tuesday’s morning hearing, Isaacson appeared to stumble over the econometrics of the theory.  Judge Boulware and Dr. Singer seemed to be on the same page more times than Isaacson and Judge Boulware.  Key in cross-examination is to have control over the witness.  This is very difficult even for the most seasoned of lawyers.  The control is through short, succinct and close-ended questions.  Yet, this was not wanted by Judge Boulware. On more than one occasion, Judge Boulware suggested much more open-ended questions.  These being the kind in which the witness is able to explain.  This runs contrary to the method and purpose of cross-examination by a party which is to box-in and pin down the witness to a certain way in which they are no longer about to wiggle out of certain inconsistencies or findings.  Instead, it appeared as Isaacson was not adopting as fast as the Court would have liked.  Certainly, there could have been a way to asked an open-ended question and then shave down the response from there.  The issue being that well-prepared attorneys have a method and roadmap to follow.  Diversion from the roadmap might mean not being able to find their way through the thicket of information that they need to cover to complete the examination.

Judge Boulware made it clear to both parties that this would be the one and only time to ask the economic experts of their modeling which determines whether or not there was an anticompetitive means by which Zuffa obtained market power.  He stressed that he would not qualify any briefing that was not highlighted prior to this hearing.  This came up when Isaacson brought up a data slide which included a data point that saw Bellator receiving revenue of $4.5 million for its Bellator 120 PPV.  The question was whether Dr. Singer included this data in his revenue variable when coming up with his analysis showing that wage share did not grow proportionately with event revenue.  It appeared as though Dr. Singer did not include it in his data.  The bigger question which was a source of contention was that Dr. Singer claimed to have not seen this slide of information before and neither did plaintiffs’ attorneys.  Counsel for Zuffa indicated they did not know which filing this was found.  This brought up plaintiffs’ counsel to indicate a feeling that they were not prepared for this showing.  Judge Boulware seemed to agree with it and made the comment that both parties must ensure that the other side is fully aware of the information that will be used and offered

The cross-examination of Dr. Singer ended abruptly as Dr. Topel’s testimony began.  Judge Boulware made it clear that there would be no ‘re-direct’ by Plaintiffs – something which counsel had hope to do to clarify some of the testimony from cross-examination.

Adaptation to the curve balls that occur in open court is one of the mysteries in handling a litigation practice.  Judge Boulware did not prepare the parties for what he wanted in the presentations although the parties indicated prior to the start of the hearings on Monday that they were not surprised or caught off guard by how this would proceed.  Plaintiffs had prepared an in-depth presentation with many slides but Judge Boulware was not interested in all of them which forced the Plaintiffs to jump around during the direct of Dr. Singer.  As explained above, Zuffa had issues with its cross-examination as well.

Show Money Special Edition: UFC Antitrust Lawsuit Expert Hearings

August 26, 2019

It’s a special edition of Show Money with myself, John and Paul recording from a Tony Roma’s in downtown Vegas after attending the first day of the UFC Antitrust Evidentiary Hearings.

Some observations:

– Judge Boulware is very active and is pushing the parties along with the direct.  He wants to get to the models for both the experts to determine whether he should certify the class of litigants.

– Judge Boulware does not want impeachment on cross examination, or any information outside the scope of the expert reports.

-Any quotes from the UFC or about the UFC which may have been seen by the public as damaging were not entertained by the Court.  Judge Boulware was strictly interested in the experts and regression analysis.

-Cross exam for the UFC did not go well as Judge Boulware would not entertain attempts to discredit the work of Singer from depos or other information.

– Jon Fitch and Kliff Kingsbury were in attendance for the whole day and plan to be there the whole week.

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