One last motion before the Class Cert-Summary Judgment hearing in the UFC Antitrust Lawsuit

December 13, 2018

In light of Friday’s big hearing in the Zuffa Antitrust lawsuit in Federal court in Nevada, the parties have filed a joint motion to stipulate how they will deal with references to trade secret or confidential information.

The joint motion was filed on Thursday and is agreed to by the parties.  It’s unlikely that the Court will disturb the agreement.  The parties believed the agreement was necessary as the Protective Order which dictates how to deal with confidential information does not address hearings.

Parties for the Plaintiffs that have filed an Antitrust lawsuit against Zuffa will argue for Class Action status while Zuffa has a Motion for Summary Judgment which may dismiss the case in full on Friday in Federal District Court in Nevada.

It does appear that Plaintiffs reluctantly joined in on the motion as the overarching issue deals with the mention of documents Zuffa believes are confidential and/or trade secret.  A motion to seal is pending before the court.

Joint Motion by on Scribd

 

Payout Perspective:

Both parties had a chance to provide statements to the Court in this Joint Motion.  The Plaintiffs cited Kevin Iole’s Yahoo story from Wednesday in which Dana White gave him the payouts of Chuck Liddell since 2011.  This would seem to run contrary to the claim that Zuffa salaries should be confidential.

The Court could rule on the Motion to Seal documents that were fought over during the pleading process but it has yet to do so.  Tomorrow will be a big day because not since the Motion to Dismiss will this case hinge upon being dismissed.

Court in UFC Antitrust Lawsuit decline legal “hot-tub”

December 2, 2018

The Court in the UFC Antitrust lawsuit has ruled that there not be an evidentiary hearing on the admissibility of expert reports and testimony prior to the December 14th Motion for Summary Judgment and Class Certification hearing.

The Court issued a Minute Order late last week:

The Court has considered the Request [ECF No. [617]] for an evidentiary hearing. The Court DENIES this request at this time. The Court will the hear arguments of counsel and make a determination at the hearing on December 14, 2018 whether an evidentiary hearing is necessary to decide the Motion To Certify [ECF No. [518]].

As we explained in this post, the hearing requested by Zuffa was to determine expert testimony and the admissibility of the same.  The Plaintiffs argued that Zuffa was asking for a reconsideration of a evidentiary hearing to determine the expert testimony.  As Plaintiffs point out, the Motion to Certify the Class occurs on December 14th and would require a delay in that decision if they were to entertain such a hearing.

Payout Perspective:

A minor victory for the Plaintiffs here as it does not have to prepare for another hearing in this lawsuit.  It also prevents a determination on the evidence prior to the class certification hearing.  While the Court may still request an evidentiary hearing at some point, it saw no reason to do it prior to next Friday’s big day.  One might take this as good news for Plaintiffs if you think that the Court was concerned about the information that it needed another day to decide the evidence in this case.  Of course, the court’s calendar could be so full, there was just not enough time to slot it in before the 14th.  MMA Payout will keep you posted.

Plaintiffs in UFC Antitrust Lawsuit try to avoid “hot tubbing”

November 16, 2018

Plaintiffs in the UFC Antitrust lawsuit have filed a letter to the Court arguing that there should not be an evidentiary hearing on expert testimony.  The legal slang of “hot tubbing” where “concurrent expert evidence” is being offered and heard by the court at the same time.

Letter November 16 by on Scribd

Plaintiffs see a request by Zuffa to hold an evidentiary hearing regarding the expert testimony as an end-around to exclude expert testimony.  The Court denied Zuffa’s Daubert motions without prejudice in late September per Plaintiffs. It’s the position of Plaintiffs that this is a way to ask for the Court to reconsider at this late date.  Plaintiffs also argues that the format of each side presenting its experts on direct and then cross examines the other side would take multiple days.  Notably, this would run into the rescheduled date for the Motion for Summary Judgment of Friday, December 14, 2018.  It would most certainly delay the hearing date once again if the Court were to entertain the hearings.

There is also the argument that evidentiary hearings on class certification are not required.  Plaintiffs cite cases where the Court suggests that evidentiary hearings for these types of complex cases are unnecessary.  Finally, Plaintiffs also argue that evidentiary hearings for summary judgment almost never happen and there’s no extraordinary reason brought up by Zuffa why one should take place now.

Notably, “hot tubbing” is not prohibited, but its not specifically addressed.  There are various opinions on its use and affect.  Judges have wide latitude when it comes to admitting expert witness testimony.  Of the factors a court may consider, the most important tends to be whether or not the testimony is a waste of the court’s time.

Payout Perspective:

And we are now introduced to the term of “hot tubbing” which is a term that originates from Australia according to some research.  It’s the “battle of the experts” and the purpose seems to be a way to flesh out some of the theories asserted by the parties in hopes of scaling down the arguments for the court at trial.  Plaintiffs believe that Zuffa is asking for this type of hearing as either a second bite at attempting to exclude their experts or stall.  I would think that it’s the former rather than the latter.  Zuffa likely believes that if they can knock out some of Plaintiffs experts, there will be little left of Plaintiffs claims.  MMA Payout will keep you posted.

ShowMoney talks UFC Antitrust Lawsuit and ONE business

November 14, 2018

Show Money is back once again as I discuss the business of MMA with Bloody Elbow’s John Nash and Paul Gift (also of Forbes).

This show’s topics includes the upcoming Motion for Summary Judgment in the UFC Antitrust Lawsuit and the business moves made by ONE Championship.

Zuffa files Reply Brief supporting its right to seal docs in Antitrust case

October 29, 2018

In its latest filing, Zuffa has filed its reply in support of its motion to seal parts of the opposition brief filed by the plaintiffs in response to the company’s motion for summary judgment in the Antitrust lawsuit.

Zuffa filed a Motion to Seal certain documents that are being used in support of its Motion for Summary Judgment.  The promotion included justifications for sealing each of the documents it requests.

Zuffa Motion to Seal by on Scribd

Plaintiffs argue that the documents are not commercially sensitive information.  In its brief, Plaintiffs cite testimony from Zuffa’s attorney Michael Mersch about a hypothetical contract, testimony related to Lorenzo Fertitta’s deposition concerning financial information and wage share.  Plaintiffs argue that there is no confidential information contained in the testimony sought to be sealed. Zuffa also requests portions of expert reports to be redacted.  This includes plaintiffs’ expert report from Hal Singer and its own expert Robert Topel.

Plaintiffs Opposition by on Scribd

Perhaps one of the more salient arguments in Plaintiffs argument is that many of the passages that Zuffa seeks to redact are old.  Essentially, the information that Zuffa seeks to seal are remnants of the past and do not contain trade secrets because they no longer contain information that is subject to the current business landscape.

The Reply is its response to the Plaintiffs’ seeking to unseal certain documents filed in support of the brief filed by the fighters suing Zuffa. Plaintiffs’ opposed the motion for summary judgment filed by Zuffa seeking to dismiss the fighters’ claims against the promotion.  But, although Zuffa has unsealed and unredacted certain documents, there still remains a giant portion still unavailable for viewing.

Zuffa Reply ISO Motion to Seal by on Scribd

In its Reply Brief it reaffirms that it properly identified documents that it was sealing and met the legal burden for documents needed to preclude.

Additionally, they claim that the documents sought to seal are specific and would pose competitive harm to the company as they would divulge confidential business information and strategy.  Zuffa also rejects Plaintiffs argument that the information sought to seal is old and already public knowledge.

The Court will decide whether Zuffa carries its burden to show that the records it seeks to seal “articulate compelling reasons supported by specific factual findings,” providing ‘articulable facts’ that favor secrecy and that those interests outweigh the presumption of public access to judicial records.

While it has been underscored in this briefing, the right of access by the media is a viable argument for the Court to look at the sealing of documents critically.  The Reply includes several tweets from John Nash and articles for Paul Gift which discuss the Zuffa antitrust lawsuit.  Certainly, the attorneys have taken just a survey of the reporting going on here as media here is just an afterthought from both legal sides.

The recent reversal in ruling in the Hunt-Zuffa lawsuit which sealed Bout Agreements.  In the Order which granted the sealing of documents, the Court stated, “[D]efendants claim that the agreements contain proprietary information, and that competitive standing with MMA promoters.  The court finds that defendants have identified compelling reasons that warrant sealing the exhibits…”  This does not seem compelling at all.

How will this all shake out?  If you take the Hunt ruling into consideration, it would seem that despite the “compelling” standard for sealing documents, the Courts skew toward finding any excuse to seal a document.

Plaintiffs file Opposition to UFC’s Motion for Summary Judgment in Antitrust lawsuit

September 21, 2018

Plaintiffs in the Zuffa Antitrust Lawsuit have filed their Opposition to UFC’s Motion for Summary Judgment.  The 47-page long opposition brief includes over 100 exhibits, many of which are redacted, or include deposition transcripts with redactions.

The main argument in the Plaintiffs’ Opposition is that the UFC is the “major league” of MMA and it has done so through predatory means.  The theory asserted is that it has become the top of the food chain in MMA through its retention of top-level fighters.  It argues that “a critical mass” of elite fighters is necessary to compete with the UFC.  But, the UFC’s scheme has foreclosed this opportunity.

Despite the fact Zuffa argued in its motion that there was ample competition within the industry as evidenced through testimony of rival MMA promoters and fighters that left the organization, Plaintiffs argue that the “supposed evidence of Fighter mobility merely reflects that the UFC is the “major league” of MMA and cuts Fighters who do not meet its standard.”

Plaintiffs argue in their brief that Zuffa’s anticompetive scheme was “designed to lock in current and potential top fighters to exclusive contracts for the most valuable parts of their careers.”

Oppos to MSJ – Plaintiffs by on Scribd

It noted that Zuffa used its market leverage to extend exclusivity over its fighters. This was done through coercion, intimidation and other means of forcible persuasion.  This included four ways outlined by Plaintiffs and evidenced through deposition transcripts.  This included:

  • Move Fighters to unfavorable placement on the fight card for an event
  • Control the timing of a bout (refuse to off Fighters bouts)
  • Delay a Fighter from competing for another promoter through the Right to Match and Exclusive Negotiation clauses in its contract.
  • Deprive fighters of title opportunities

Plaintiffs argue that Zuffa’s scheme impaired competition through locking up the majority of top fighters, deprived rival promoters of the key input of top fighters and relegated other promoters to feeder or minor leagues.  It calls out other promoters cited in Zuffa’s motion that indicated that they could compete “are not credible and are disputed.”  In fact, Plaintiffs show why Bellator, OneFC and PFL’s statements indicating that they are on par with the UFC are false.  Also, noted in a footnote to the motion, Absolute Championship Berkut, also recognized as a direct competitor, noted the cancellation of three events due to “organizational and financial problems.”

The Plaintiffs cite Dr. Singer’s expert report regarding the input and output markets and its showing how Zuffa has suppressed fighters’ wages, restricted the output of fighter services and excluded rivals.  Plaintiffs also argue that the acquisitions of other organizations by the UFC stifled competition and restricted fighter mobility.

Payout Perspective:

There is a lot to digest here and MMA Payout will take a deeper dive into the opposition including the evidence used by Plaintiffs.  The crux of their opposition is that the UFC’s anticompetitive scheme is based upon the retention of top tier fighters through exclusive contracts.  It locked in top fighters during their “most valuable parts of their careers” and was to leverage its market power to extend exclusivity.  As a result, it impaired competition despite the views of rival promoters that indicated it had no problem signing fighters it wanted.  As a result of the scheme, the anticompetitive effects included suppression of fighters’ compensation, reduction of “quality” MMA events and it suppressed marketwide output of MMA Events and inflated prices.  Furthermore, Zuffa cannot show that the contractual exclusivity provided procompetitive benefits which may outweigh the anticompetitive effects.

Zuffa has a chance to offer a Reply to this Opposition which will be submitted on November 2nd.

Plaintiffs in UFC Antitrust Lawsuit request Court to file response to MMA Manager Declaration

August 30, 2018

The plaintiffs in the UFC antitrust lawsuit have requested that the Court review its Surreply Brief in opposition to Zuffa’s Motion to Seal Zuffa’s Summary Judgment Motion and Portions of Plaintiffs’ Class Certification Reply.

Specifically, the Surreply Brief addresses the Declaration of MMA Manager Ali Abdelaziz which was included in Zuffa’s Reply Brief.

A Surreply Brief is not automatically considered by the Court, in fact, it is usually disliked since its additionally work for an already overworked court.  These types of briefs must bring up new evidence, facts important to the case not brought up or another exigent reason.  Reiterating arguments that would have been contained in an opposition will likely get poor treatment.

Here, plaintiffs believe the need to address Abdelaziz’s Declaration which Zuffa used to aid its Reply Brief.  The argument in which Zuffa uses Abdelaziz’s testimony is based on the need to seal payout information of fighters.

The manager of many top fighters submitted this declaration on behalf of Zuffa.  He claims that public disclosure raises “legitimate safety concerns” for fighters and their families.  He also believes that public disclosure of terms and compensation of fighters’ agreements.

Declaration of Ali Abdelaziz by JASONCRUZ206 on Scribd

It is worthy to note that no current UFC fighter signed a Declaration in support.  But, Abdelaziz, who represents a huge swath of UFC fighters supports the sealing of documents.  Although Abdelaziz’s declaration supports the last argument in Zuffa’s brief (and usually the weakest), plaintiffs felt compelled to address it.  The declaration was torn apart by the plaintiffs in its Surreply Brief.

Motion to FIle Surreply by on Scribd

Plaintiffs’ list four reasons why Ali’s Declaration fails: 1) The rationale that disclosure of fighter compensation hinders rather than helps in obtaining negotiating athlete purses rings false lin light of evidence of salaries of players in other major leagues.  2) The Declaration contradicts Zuffa’s own arguments in favor of sealing since it argued that disclosure would put Zuffa in a strategic disadvantage whereas Abdelaziz says non-disclosure is advantageous. 3) The allegation that fighters would be put at risk of kidnapping or extortion is not supported by credible evidence.; and 4) Plaintiffs calls Abdelaziz credibility a question since he’s an MMA manager and alleged principal in the WSOF as a promoter.

Payout Perspective:

While the brief is damaging, its still up to the Court to decide whether or not to take it into consideration.  Of course, we know that Zuffa will file an opposition to this Surreply which means more filings.  MMA Payout will keep you posted.

Details of Zuffa exec deposition reveals questions on exclusivity provisions, right to match and toy deals

August 20, 2018

Zuffa filed its Motion for Summary Judgment in which it wishes to dismisses the antitrust lawsuit filed by ex-fighters.  MMA Payout takes a look at some of the deposition testimony attached as exhibits to the motion.  This is the first of a series.

In order to prove its case, Zuffa attaches portions of the deposition testimony it cites in its motion.  The depositions are not the full transcript but small snippets of pages from the depositions.  There are a portions that are redacted for the public so we cannot see the full transcript.

For instance, Sean Shelby’s deposition attached to the motion reveals nothing. The first question is visible, but the rest of the deposition is redacted.  The question posed to Shelby was an Exhibit which is a text completion between “multiple parties.”   One could only assume that the texts may be between Shelby and/or Dana White, Joe Silva or another UFC employee.

Depo of Sean Shelby by JASONCRUZ206 on Scribd

But, not all transcripts are like Shelby’s.  For instance, UFC Executive, Ike Epstein includes some interesting testimony.

Exhibit 8 – Depo of Ike Epstein by JASONCRUZ206 on Scribd

Reason for Exclusivity

The snippets that were provided in the exhibit provide Epstein’s testimony with respect to the purpose of exclusivity provisions in athlete contracts.  He testified that the UFC were “putting on 40 fights per year, and in order to put on 40 plus fights per year, you have to know that fighters are available to put on those events.”  He added, “[i]f the fighters were not exclusive to us, we could never put on 40 plus events per year, and our output would significantly decrease.”

He stated that the provision was a benefit for all UFC fighters and that no one would be affected negatively by the clause.  He did qualify this statement by testifying “all fighters are different.”  Although lured into the trap that exclusivity prohibits fighters from finding other opportunities elsewhere, Epstein stated that the sole purpose of the provision was to ensure that the company could do 30-40 events per year.  He qualified his answer to the UFC lawyer’s “narrow question” by stating that he disagreed with the “underlying assumption” in the question that assumed there were more opportunities for an athlete but for the exclusivity provision in UFC contracts.

At this point in the testimony it seems to get contentious, as the parties fight over the semantics of the questions.  Here, the plaintiffs’ attorney would like Epstein to agree to the question that based on the UFC’s exclusivity provision, the fighters cannot seek opportunities to fight elsewhere.  However, Epstein is wary of the trap and will not cede to this admission.  He does note that the viewpoint of the question infers something that the UFC does not want to admit, but plaintiffs cannot provide.  And that is that if fighters were given an opportunity to freely contract with others, they would earn more money, find more fights and/or both.

When asked by plaintiffs’ attorney Joseph Saveri whether boxing has the “same sort of exclusivity problems,” Epstein said yes.

He also agrees that most fight contracts are for 4 fights or 20 months, whichever comes first.  However, some fighters have longer terms.

He also testifies about the negotiations surrounding the Gilbert Melendez contract and how they thought the matching offer given to the lightweight was unreasonable.

There is an interesting exchange where Epstein discusses the willingness to match the offer made to Cheick Kongo.  However, the company decided to let the heavyweight go and he signed with Bellator.

Jakks and Round 5

Epstein is questioned about a toy deal with toy makers  Jakks Pacific and Round 5.

The limited testimony addresses Round 5’s ability to sign exclusive agreements with certain fighters.  Epstein notes that Round 5 was able to secure exclusive contracts to do toy deals with UFC fighters and were paid directly.   Jakks Pacific had the official license to replicate UFC fighters but, for a time, were foreclosed from making certain UFC fighters due to an exclusive contract with Round 5.

In 2009, Jakks, the master toy licensee for the UFC sub-licensed with Round 5 Corp to share UFC and MMA talent in the selling and distribution of action figures.  This brought all of the UFC athletes under the same umbrella and all were paid the same.

The example underscored the limited freedom that athletes had to resource other forms of revenue.  Ultimately, this was consolidated within Zuffa.  This testimony also related to Identity Rights for fighters.

Who is this?

There is a snippet where they discuss an individual that is hard to decipher without more information.  All that can be gathered is that “he regularly reports on ratings of UFC events,” and Epstein viewed reports as “business intelligence.”

Payout Perspective:

We’ll take a look at other depo transcripts as we await the plaintiffs response to this motion.  Epstein, a lawyer, understands the depo process so its no surprise that his testimony did not illicit anything of substance aside from the fact he liked Cheick Kongo.

Zuffa files its Motion for Summary Judgment against former fighters in the UFC Antitrust Lawsuit

July 31, 2018

On Monday, Zuffa filed its Motion for Summary Judgment against the Plaintiffs in the UFC Antitrust lawsuit.  The filing argues that despite the lengthy and voluminous amount of discovery taken place, the former fighters have not provided factual evidence to support their antitrust claims.  It also argues that the expert opinion of the Plaintiffs should be excluded, and if not, they do not set forth evidence to establish a market, examine the correct wage comparison exhibiting losses and show causal injury.

Zuffa notes that it has filed Daubert motions which seek to exclude the testimony from Plaintiffs’ two economic experts.  If the court grants those motions, Plaintiffs will not have evidence of market definition, causation or damages.  Even without the court granting those motions, Zuffa argues that Plaintiffs’ allegations for monopolization and monopsonization must fail.  Zuffa argues that based on the testimony from rival organizations such as Bellator, PFL, OneFC and ACB that none had issues securing fighters and thus had the necessary inputs to compete.  The company argues that Plaintiffs changed its alleged “scheme” and omitted any monopoly claims.  The new theory is comprised of a “free floating” monopoly “broth” which comprises different allegations and Zuffa argues that the claims fail due to the lack of a sufficient input or output market.

Zuffa cites to the ruling in the Golden Boy-Al Haymon lawsuit in which Haymon won on summary judgment.  Essentially, Zuffa contends “Plaintiffs have not met their burden of proving an input market of buyers (where Zuffa competes with other promoters to acquire athletes’ service) or an output market of sellers (where Zuffa competes to offer sports entertainment to viewers).”

The motion attempts to poke holes at Dr. Hal Singer’s findings in its expert report supporting the former fighters’ argument for an “Elite MMA Fighter” market.  Zuffa argues, “Dr. Singer has not even attempted to define a market using the accept SSNIP [Significant Non-transitory Increase in Prices] test because he has not defined buying promoters to whom a price decrease by a monopsonist would cause a shift in business.”  It once again cites to the Golden Boy-Haymon opinion for the example where a product market for “Championship-Caliber Boxers” is not sustainable where expert fails “to analyze the qualifications or backgrounds of the current managers in the market.”  Zuffa states, “Dr. Singer merely uses the ranking data combined with his own subjective analysis to include or exclude athletes rather than promoters.”

Zuffa goes on to argue Dr. Singer’s definition of the output markets stating that the proper market definition is broader than just MMA and his expert opinion does not consider the reasonable substitutes.

In arguing that the court dismiss its Monopsonization Claim, Zuffa argues that the testimony from competing MMA promoters have access to the inputs needed to compete refutes the monopsony claim that the promotion is a “monopsony purchaser of athletes’ services.”

Zuffa brings across multiple examples of its promoters thriving despite it being a competitor in the same market.  Bellator’s recent “nine-figure deal” with DAZN to produce 22 annual events is used as evidence to argue that other promotions do not have barriers to entry.  They also cite to PFL’s recent deal with NBC Sports and One Championship’s boast that it broadcasts to “1.7 billion potential viewers across 138 countries.”

Scott Coker’s deposition testimony is quoted in the motion stating, “there’s not going to be a free agent fighter that Bellator can’t affor or have access to” to support the claim that other promotions are comparable to the UFC.

In addition, Zuffa claims that Plaintiffs have failed to evaluate the effect of the challenged conduct on actual compensation levels.  It claims that actual compensation for fighters rose during the Class Period in question.  This goes back to the overarching theme of “wage share” versus “wage level.”  Wage share is the total compensation as a percentage of relevant revenues whereas wage level are the actual wages. Here, Zuffa argues that wage share is an unacceptable measure of anticompetitive conduct because it would have the “practical effect of stifling companies’ innovation and investments for fear of incurring treble damages liability based on a lower than average wage share.”

One of the interesting arguments made by Zuffa is that it did not engage in exclusionary anticompetive conduct.  It claims it did not engage in “predatory hiring,” which is the hiring of talent for purposes of keeping them away form a competitor.  The motion denies that the UFC signed Gilbert Melendez and Antonio Rogerio Nogueira to prevent them from leaving for another organization as claimed by Plaintiffs.  It also mentions the “benching” (i.e., “forced periods of inactivity”) of three UFC athletes: Andrei Arlovski, Roger Huerta and another fighter which is redacted.

The motion also argues that Plaintiffs did not prove that Zuffa’s Exclusive Contracts Foreclose a “Substantial Share of Competition.”  Zuffa claims that Plaintiffs contention that the company’s 30-month exclusive fighter contract (including the right to match period) is illegal is wrong.  “Contrary to Dr. Singer’s assertion that 30-month exclusive contracts are unlawful, courts have routinely held that exclusive contracts even up to six years are not anticompetitive so long as there is sufficient opportunity to compete for each contract at the time it is signed.”

Motion for Summary Judgment by JASONCRUZ206 on Scribd

Payout Perspective:

MMA Payout will continue to examine this motion as we have yet to talk about the plethora of exhibits which were attached to support it.  The arguments are similar to the ones made at the outset with its motion to dismiss. Zuffa’s introductory section which explains its success based on taking risks on the industry, its investment and its business acumen to get where it is today.

Zuffa stresses the competition in its motion utilizing evidence from testimony of its competitors to show that they are competing with the UFC and in certain instances have had no issues in attaining athletes similarly sought by the promotion.  This would seem to contradict the Plaintiffs argument that it had a monopsony over the market for “Elite Professional MMA Fighter services.”  As for its monopoly claim, Zuffa states the plaintiffs have conceded this claim based on inferences from prior pleadings.

Although it notes it is moving to exclude Plaintiffs’ expert, Hal Singer, it takes direct aim in rebutting his analysis which supports the claims made by the former UFC athletes.  It argues that they have wrongly identified the input or output market by attempting to define the market by the athletes and not by the MMA promoter.

Plaintiffs will have an opportunity to respond in the coming weeks and MMA Payout will keep you posted.

Plaintiffs in UFC Antitrust lawsuit file opposition in light of U.S. Supreme Court ruling

July 12, 2018

Earlier this week, the plaintiffs in the UFC Antitrust Lawsuit have filed a response in opposition to Zuffa’s motion seeking to file supplemental authority to support its Motion to Exclude Plaintiffs’ expert Dr. Hal Singer.

Zuffa is seeking to include the recent U.S. Supreme Court Decision in Ohio v. American Express in support of its Motion to Exclude which was filed at the beginning of May.  The U.S. Supreme Court issued its opinion on June 25, 2018.

Zuffa filed a motion requesting the opportunity to file supplemental authority on July 5th.  It explains the reason why it would like the Court to consider the case:

The Supreme Court decided Ohio v. American Express Co., — S. Ct. –, 2018 WL 3096305 on June 25, 2018. As explained in Zuffa’s proposed Notice of Supplemental Authority, this decision clarified that in light of the procompetitive benefits of certain vertical restraints, a plaintiff must define a relevant market to evaluate the anticompetitive effect of an alleged vertical restraint even when using direct evidence. Id. *8 n.7. Plaintiffs argue in their Opposition to the Singer Daubert motion that defining a relevant market is unnecessary when evidence of direct effects on compensation is presented. Accordingly, Amex will inform this Court’s decision on whether to grant Zuffa’s Motion to Exclude the testimony of Dr. Singer in light of this new development in the law that affects the currently pending motion. Plaintiffs are not prejudiced by this filing, as this additional legal authority was unavailable prior to the Daubert briefing, Plaintiffs will receive timely notice through this filing, and Zuffa has not delayed in presenting this authority to the Court or Plaintiffs.

Plaintiffs argue in their opposition brief that Dr. Singer has defined the relevant markets and applies them to his opinion.

Plaintiffs Response in Opposition to Zuffa’s Motion to File Supplemental Authority by JASONCRUZ206 on Scribd

Dr. Singer was retained by the Plaintiffs as an expert economist to opine, in part, that the compensation of all proposed class members is adversely affected by the UFC’s anticompetitive practices.  He also to identify the relevant markets in which this occurs.

The Supreme Court case is detailed here. In a 5-4 decision in favor of American Express, the Court determined that Amex’s anti-steering policies did not violate antitrust law.  The case specifically involves policies set by some credit card banks that prevented merchants from steering customers to use cards from other issuers with lower transaction fees, forcing merchants to pay higher transaction fees to the banks.  The case was based on the relationship between antitrust law and two-sided markets.  Thus, you might infer the parallels with the UFC case where the issue of the defining markets are being challenged.

The court in the UFC lawsuit may or may not take the AmEx case into consideration but Zuffa had a right to file the motion and the Plaintiffs had an opportunity to advise why it did not apply in this case.  MMA Payout will keep you posted.

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