Judge orders UFC hand over fighter pay documents

June 12, 2017

U.S. Magistrate Judge Peggy Leen issued a 26-page ruling on Friday in the UFC Antitrust lawsuit which requires the UFC to hand over a study related to fighter pay.  There were three document requests demanded by Plaintiffs which included information related to a fighter pay study.

Order on Motion to Seal by JASONCRUZ206 on Scribd


Mercer is a third party human resources consultant.  The primary dispute is over a study commissioned by Mercer to produce a “fighter pay assessment” to guide “future compensation and benefits program design, including fighter pay (base and incentives) and benefit levels.”

The UFC produced 6 documents to requests by Plaintiffs and there are 3 documents in dispute.  Two were created by Mercer and the third was an email chain between the UFC’s in-house counsel and its outside lawyers Campbell & Williams regarding setting up a phone call with “outside consultants.”

After the documents were received by Plaintiffs, a subpoena and deposition notice to Mercer regarding the fighter pay study.  At that time, the UFC notified Plaintiffs are “clawing back” the three documents in dispute citing work product.  Clawing back is a request made of the inadvertent waiver of alleged privileged documents.  The claw back is usually dictated by the protected order the parties agree to at the start of litigation.

Of the three documents in dispute, the first is a memo from a Mercer employee regarding statement of work for the fighter pay study, the second is the aforementioned email chain between the UFC’s lawyer and Campbell & Williams and the third is a draft presentation entitled, “Fighter Pay/Project Update and Methodology Discussion dated March 18, 2014.

As the judge’s order notes:

“The presentation discusses a comparator group of other sports organizations including NASCAR, MLB, the NBA, and the NHL whose compensation practices Mercer proposed to study to “provide an external basis for understanding how UFC’s fighter pay structure and practices compares to similar companies.”

All three documents claimed that the information was work product.

The key term to understand when determining work product is whether the documents were created in “anticipation of litigation.”  The Court determined that they were not.

Notably, the UFC argued that a previous “quite contentious” interaction with Bellator as reasons why the current information was work product.  They cited the Eddie Alvarez lawsuit which produced a contract that has been used time and again.

The Court did not buy the UFC’s argument that the documents were work product.

Under the Court Order, the UFC must produce the documents.  The Court did not intervene on another issue regarding privilege log designations from UFC – a list of documents that a party must produce to show the opposing side what it is withholding and what privilege it is claiming to withhold.  The Court wants the parties to conduct a meaningful “meet and confer” prior to judicial intervention.

Payout Perspective:

This is a loss for the UFC as it wanted the documents to be privileged.  With the documents in Plaintiffs hands, they will likely conduct a deposition of the Mercer employee(s) that produced the study as well as use the information in deposing UFC officials.  Will this facilitate any settlement?  Probably not, but the information may reveal information for the overall theme of the case for the Plaintiffs.

Fact discovery issues over White’s phones to be heard Thursday

May 31, 2017

On Thursday, the parties in the UFC Antitrust lawsuit will conduct a hearing to determine a number of discovery issues, most importantly, the status of Dana White’s phones.  The hearing will take in federal court in Vegas before a magistrate which hears these types of discovery disputes.

Plaintiffs have filed a Motion to Compel the Discovery of Electronically Stored Information seeking information from four phones from Dana White.  For those wondering, the phones identified are an iPhone 4, an iPhone 6 and two Nokia flip phones.  It believes that the phones all include information for which White conducted business which may be related to Plaintiffs’ claims.  The motion and reply to Zuffa’s opposition suggests that Zuffa did not comply with the discovery process, violated the Court Order regarding discovery and did not preserve evidence when it was notified that information would likely be requested.  As it appears that certain information from White’s phones are no longer available, the Plaintiffs request an order to serve subpoenas on White’s telecommunications service providers in an effort to obtain communications logs to show the “times and dates messages were sent and received in White’s devices.”

Plaintiffs Motion to Compel by JASONCRUZ206 on Scribd

Plaintiffs claim that Zuffa has used the fact discovery cut-off to “stonewall” discovery.  Fact discovery was due on May 1, 2017, but it was clear that due to the continued meeting and conferring over documents and the issues with obtaining documents from non-parties, it would not be complete.  Realistically, this may not be any parties’ fault, and therefore it is left to the Magistrate to decide what is fair.

Plaintiffs Reply to Motion to Compel by JASONCRUZ206 on Scribd

In its opposition to the Motion to Compel, Zuffa states it “has produced over 650,000 documents, including 44,928 text messages to Plaintiffs.”  The tone of the opposition is of a party that has made its best efforts to comply with discovery while making Plaintiffs appear overbearing and zealous in its request for additional discovery.  This includes Zuffa claiming to have to “re-reproduce” all text messages due to the fact that Plaintiffs claim that some text were not originally produced.  Zuffa hired vendors to conduct forensic analysis of the information from White’s phone in preparing to turn over the information to Plaintiffs.  Moreover, it states it has complied with the standing order from the Court and the Federal Rule of Civil Procedure.  It also claims that Plaintiffs failed to “meet and confer” in good faith.

Defendant’s Response to Motion to Compel by JASONCRUZ206 on Scribd

Payout Perspective:

As suggested in its Reply Brief (the seconded embedded document above), it would appear that the request to serve a subpoena on White’s telecommunications provider (e.g. Sprint, ATT, Verizon) would add another layer to the discovery process and add more time to discovery.  Moreover, one would think that with other parties objecting to the subpoenas that a telecommunications provider would object to the same.  One would think privacy matters and that the request would be overbroad and produce non-relevant information would be obstacles Plaintiffs would have to obtain the information.  Plaintiffs are hoping that the Magistrate will see that Zuffa attempted to stall discovery and will allow this request (or some version) as a way to “make things right.”  We will see on Thursday.

Plaintiffs in UFC Antitrust lawsuit seek status conference to decide outstanding issues

May 7, 2017

Attorneys representing the Plaintiffs in the UFC antitrust lawsuit have requested a status conference with the federal magistrate to discuss outstanding issues that may impact the prosecution of its class action lawsuit.  The letter with the Court was filed on Friday, May 5th.

The Plaintiffs list several issues as to request a hearing with the Federal Magistrate, the judge that decides discovery issues.

Statement to Court by Plaintiffs by JASONCRUZ206 on Scribd

Among the outstanding issues Plaintiffs would like to discuss include:

  • Plaintiffs’ Emergence Motion for Extension of Discovery Deadline and Case Management Schedule;
  • Plaintiffs’ Motion to Challenge Work Product Designation;
  • Non-Party Bellator’s Motion to Quash or Modify Subpoenas;
  • Third Party AXS TV LLC’s Motion to Quash Deposition Subpoenas of Mark Cuban (Plaintiffs’ response is due on May 8, 2017 according to the letter and similar to the Bellator issue, would like to move them to the District of Nevada.

As of the date of the letter, the Court has not ruled on any of the above motions.  Also, it has yet to hear the Motion for Summary Judgment of Plaintiff Nate Quarry.

Plaintiffs claim that these issues coupled with issues of preservation regarding obtaining text messages from Dana White’s four separate telephone numbers (and likely the same number of phones) as well as other documents not produced for key Zuffa witnesses have blocked the prosecution of the case.

Payout Perspective:

The need for all the information possible prior to a deposition is because Plaintiffs know they get one shot at deposing the witness and if they do not have the documents prior to the deposition they will not be prepared to ask questions related to the documents that may relate to their case.  In addition, Plaintiffs’ dilemma with non-parties is having the possibility of needing to litigate those matters as well.  Zuffa will likely respond to the letter and the Court will need to make a decision on whether to hold a hearing, decide the above issues or go forward with the current court deadlines.

Attorneys in UFC Antitrust Lawsuit Fight over Extension of Discovery Deadline

April 6, 2017

The parties in the UFC Antitrust lawsuit are battling over extending the discovery period with plaintiffs requesting more time and Zuffa attorneys arguing that the deadline should not be extended.  Plaintiffs are requesting a 60-day extension of the fact discovery period and remainder of the case schedule.

According to court rules, discovery, the process of requesting for and receiving information from the opposing side and third parties must be performed by a certain deadline as dictated by a case schedule or relevant rules.

The Plaintiffs request additional time to take the depositions of UFC personnel as well as certain third parties.

Plaintiffs also stated that it is issuing a subpoena for a “person most knowledgeable” at WME-IMG.  They note that this deposition will need to happen after the April 30, 2017 deadline (court rules require a 30 day notice for subpoena for depositions unless otherwise arranged by the parties).

In its motion, Plaintiffs state it has produced a total of 64,337 responsive documents totaling 206,403 pages.  It has reviewed approximately 323,000 emails and attachments 100,000 social media files and more than 6.6 million files from the six named Plaintiffs’ electronic storage devices to produce the 64,337 documents.  Also, it has defended the depositions of five of the six named plaintiffs with Cung Le’s depo occurring on April 11th.  Plaintiffs state that Defendants have produced more than 760,000 responsive documents but has not produced a privilege log which would detail the types of documents it has withheld due to attorney-client privilege.  Also, Plaintiffs claim that Zuffa “back-loaded” (provided documents later, than sooner) its production of documents.

On the other hand, Zuffa argues that the time should not be extended due to Plaintiffs’ inaction in not completing discovery.  It also claims that they are blaming Zuffa for the delay which, of course, Zuffa denies.

Zuffa argues that Plaintiffs’ request is similar to that the Court has already ruled on in September 2016 when it gave a 30-day extension.  It also states that Plaintiffs did no serve a second set of discovery requests until August 2016.  In response to the lack of privilege log, Zuffa states that due to the size and breadth of the number of documents involved, it has taken “some time to compile and complete.”  It notes that it will serve its privilege log on April 7, 2016.  It also compares Plaintiffs privilege log with a universe of 855 documents versus Zuffa’s of “more than 30,000.”

Payout Perspective:

These types of discovery fights happen all the time although maybe not involving such a voluminous number of documents.  For either side to use an argument in which they state the number of documents reviewed and produced may be a “straw man” argument since it’s not the quantity of documents but what is contained in the discovery.  The unique nature of this litigation which includes third parties that have or threatened to quash subpoenas have likely contributed to the delay.  Also, scheduling depositions is another issue as they must accommodate scheduling.  Plaintiffs could have unilaterally scheduled depositions to ensure that the depositions were noted.  Of course, there would have been risk as to preparation and also whether or not they had the necessary documents to ask witnesses.  Expect the Court to make a decision on this shortly.

Quarry responds to Zuffa’s Motion for Summary Judgment of his claims

March 27, 2017

Attorneys for Nate Quarry have filed its Opposition Brief to Zuffa’s Motion for Summary Judgment to dismiss Quarry’s claims in the antitrust lawsuit filed in Nevada.  Quarry’s lawyers argue that while his last contract was in 2010, the harm to Quarry arose out of Zuffa’s scheme as a whole.

Quarry’s attorneys note that the former UFc fighter was “injured” during the limitations period – the four-year period between December 16, 2010 to December 16, 2014.  Among the claims is that he has not been paid from Zuffa during the period and continues to receive no payment from Zuffa’s “ongoing use of his image and likeness.”  Quarry notes that the use occurs through the use of his fights (including a bout while he was not with the UFC) on UFC Fight Pass and a highlight with Quarry’s likeness is in the video montage of the UFC PPVs.

While the UFC argues that the “express terms” of Quarry’s contract with the UFC show that his claims are time-barred by a statute of limitations.  However, Quarry argues that he can show evidence of affirmative “overt acts” taken by Zuffa with the use of his likeness/image still on Fight Pass.  Quarry’s attorneys state that fighters are not compensated for the use of their likeness/image on UFC Fight Pass and this is furtherance of the antitrust claims filed by Plaintiffs.

In addition, they cite posters autographed by Quarry from his title fight at UFC 56 on sale on the UFC web site store for $999.999 and $1,149.99.  He has not received compensation for these posters

Also of note, Quarry notes a document produced by Zuffa in discovery which allegedly accounts for uses of his image or likeness within the limitations period.

In opposing Zuffa’s argument that Quarry cannot show a continued violation of antitrust laws because of his own “receipt of benefits,” Quarry lawyers cite the Ed O’Bannon and Bill Russell cases brought against the NCAA for use of their images and likenesses.  Quarry’s lawyers note that the court rejected arguments that scholarship agreements by O’Bannon and Russell occurred much more than four years before their lawsuits were filed.  Quarry’s tie this ruling as similar to Quarry’s contract with the UFC and the continued use of his image and likeness on Fight Pass.  Notably, Boies Schiller, Zuffa’s attorneys here, was one of the firms representing the plaintiffs against the NCAA.

Quarry’s Opposition to Summary Judgment Motion by JASONCRUZ206 on Scribd

Payout Perspective:

The basic argument here is that Zuffa claims that Quarry’s lawsuit is barred by a 4 year statute of limitations since his contract with the UFC was in 2010.  However, Quarry argues that Zuffa is still using his likeness/image through UFC Fight Pass and selling his autograph on the UFC web site.  It is ironic that Zuffa’s attorneys have been on both side of this argument and will be interested to see how they respond.

Bellator sues the UFC to prevent access to company documents

February 22, 2017

Bellator has sued Zuffa in federal court in California to prevent the UFC from obtaining key financial and contract information on fighters in its possession.  The Viacom-owned company is seeking to quash the subpoenas served by the UFC to obtain information that is part of the antitrust lawsuit it is involved with former fighters.

The lawsuit was filed on Wednesday in the U.S. District for the Central District of California.  The antitrust lawsuit’s current venue is in Nevada federal court.

Bellator claims that it has already “produced in excess of two thousand pages of responsive documents” related to the lawsuit.  It argues that the UFC’s request for additional information seeks confidential information, seek trade secret and other sensitive information.

Payout Perspective:

This was an obvious result from the discovery in this lawsuit.  It was clear that the UFC or Plaintiffs would request information on contracts and finances from its biggest competitor.  It was also clear that Bellator would not provide this information.  It does appear that Bellator has complied to a certain extent.  The UFC will likely say that some (maybe most) of the information provided by Bellator was irrelevant and a document dump and it has not provided the information provided in its subpoena requests.  With Bellator intervening, the process for the Le plaintiffs to go to trial will take much longer due to the fight over documents.

MMA Payout will have more in the next day.

Zuffa files Partial Motion for Summary Judgment to dismiss Nate Quarry from antitrust lawsuit

February 2, 2017

Zuffa has filed a motion for partial summary judgment to dismiss the claims of antitrust plaintiff Nate Quarry based on statute of limitations.

The motion was filed yesterday and requests an oral argument although that is not guaranteed.

The motion seeks to dismiss Quarry’s claims based on his promotional, bout and merchandise agreements with the company and deposition testimony.  The motion claims that Quarry’s claim is barred by the Four-Year Statute of Limitations.  In the alternative, it states that the “continuing violation exception” does not apply to his untimely claim.

“Distilled to its essence, Mr. Quarry’s claim challenges the scope of the UFC Identity Rights he contractually granted to Zuffa, the duration of those grants, and the payments he received in return—all terms in his 2004, 2005, and 2008 Promotional Agreements; his 2008 Merchandise Rights Agreement; and his January 2010 Bout Agreement.”

Zuffa argues that Quarry’s “last relevant agreement with Zuffa was executed in January 2010, but he chose to file suit in December 2014.”

15 U.S.C. section 15b limits antitrust claims to a four-year statute of limitations.

Zuffa also claims that Quarry’s claim should not be allowed through the “continuing violation exception.” This exception would override a statute of limitations defense.  However, Zuffa argues that relevant case law precludes such an exception since Quarry signed his Identity Rights outside the limitations period.  Even if Quarry argues that he received a benefit after the limitations period (i.e. after January 2010 and within four years from the filing of the lawsuit, thus being within the time to sue), there was not a new “overt act” performed by Zuffa which would restart the statute of limitations.

The motion was filed with Quarry’s promotional, bout and merchandise agreements but they were filed under seal meaning that public does not have access to them.

Payout Perspective:

Quarry was deposed by Zuffa and you can see the strategy was to probe him for information to try to dismiss his claims from the lawsuit.  Similarly, we would probably see this happening with other UFC veterans.  Plaintiffs will have until mid-February to oppose the motion.

UFC files Answer to Plaintiffs’ Complaint, parties fight over discovery process

January 27, 2016

Last week, attorneys for the UFC filed its Answer to Plaintiff’s Amended Complaint in the ongoing Antitrust lawsuit venued in Nevada.  The rather long (27 pages to be exact) goes through each and every paragraph of the Plaintiffs’ Complaint.

After the court denied the UFC’s motion to dismiss, per the rules of federal civil procedure, the company had to file an Answer to the Complaint.  Per rule 8(b) of the Federal Rules of Civil Procedure, the answering party must admit, deny or state that they do not have knowledge to admit or deny the allegation.  However, according the rules stating that you lack knowledge serves as a denial.  It is standard that parties address each and every sentence in a Complaint and even if the statement or allegations may not need an admission or denial, attorneys are ultra-careful and deny most allegations to ensure that there is nothing that might be construed as an admission.

In the Answer the defendant may set forth “Affirmative Defenses” which are facts not within the plaintiffs’ complaint which might defeat the plaintiffs’ allegations.

The Answer filed by the UFC’s attorneys, Boies Schiller and Campbell and Williams does not include many revelations as most Answer’s do not reveal too much.

Zuffa Answer to Plaintiffs' Consolidated Amended Complaint

Here are some of the more interesting parts of the Answer:

  • Probably not too interesting, but Zuffa denies it violated the Sherman Act or engaged in any anticompetitive activity, or that it has injured the Plaintiffs in any way.
  • Zuffa’s annual gross revenues for 2015 exceeded $500 million dollars (page 3, paragraph 7). Although Zuffa remains vague on its revenues, the statement is a conservative estimate from Lorenzo Fertitta’s assertion it made $600 million in 2015.
  • When plaintiffs cited an article or photo included in its Amended Complaint (see paragraph 8 and 12, page 4) and, the UFC did not admit to the veracity of the article or photo. Instead, it indicated the source of the article would be the place to determine the truth of the statement.
  • Zuffa objects to the definition of “Elite Professional MMA Fighter” for being “vague, unclear, confusing, misleading and without any objective or quantifiable basis or any standard usage in any industry.”
  • It notes that the video games UFC Undisputed 2015 sold over 2 million units while UFC Undisputed 2009 sold over 3.5 million units.
  • It notes that Fedor Emelianenko turned down offers to fight in the UFC.

In addition, Paul Gift of Bloody Elbow took at look at the discovery efforts ongoing in the lawsuit.  So far, according to the report 17,909 documents totaling 239,923 pages have been provided from Zuffa’s electronic fighter files.  It is in addition to 108,000 documents provided late last year.  The parties are still haggling over details in the discovery process including custodians (individuals who might have discoverable documents), search terms (the words/phrases used to identify potential relevant documents), relevant time frame among others.

The discovery phase continues as the parties indicate that they have served discovery requests on third parties which should add another level of complexity to this process as the third party lawyers will get into this situation.  Certainly, the attorneys for these third parties will want to ensure that its clients are protected.

Payout Perspective:

Nothing terribly earth-shattering from the Answer.  As in most lawsuits, you want to be as vanilla as possible when providing an Answer.  The Affirmative Defenses do not reveal too much about litigation strategy as well as many are very much form defenses to the lawsuit.  Watch for the discovery fight to continue as third parties were served discovery requests.  Do not be surprise if we see attorneys for the third parties file motions to narrow the scope of discoverable information.

Zuffa denied motion to stay discovery in antitrust lawsuit

July 30, 2015

A Nevada judge has denied Zuffa’s motion to stay discovery in the antitrust lawsuit filed by former fighters.  In addition, it appears that the court will want the parties to come up with a plan to allow the plaintiffs some of its discovery requests.

A Motion to Dismiss the lawsuit brought by Zuffa has yet to be heard by the court after the case was transferred from San Jose to Las Vegas but the court’s allowance of some of the discovery might infer that this case will not.

U.S. Magistrate Judge Peggy A. Leen denied Zuffa’s Motion to Stay Discovery.  The order indicates that “[t]he parties are directed to meet and confer and submit a proposed form of Confidentiality and Protective Order, as well as ES1 Protocols, within 30 days from today’s date [July 28th].”

In addition, the order stated that the Court “is going to impose restrictions on discovery while the District Judge considers the pending Motion to Dismiss…” it goes on to state, “Plaintiffs’ Counsel are encourage to reconsider their broad discovery requests.”

In federal court, there is a discovery “master” or judge that determines discovery disputes as was done here.  Judge Richard Boulware will preside over the actual court case.  This differs from state court where the trial court judge typically decides discovery motions too.

H/t:  Bloody Elbow

Payout Perspective:

The ruling appears to be a “cookie-cutter” of sorts as you might infer that the encouragement by the Court for Plaintiffs to reconsider its “broad” requests suggests that the Court does not want to grant Zuffa’s motion to halt discovery.  But, it acknowledges that the requests for a broad swath of financial statements, balance sheets and other receipts going back years and years is too cumbersome and unwieldly.  Thus, Plaintiffs will get a chance to obtain some documents but perhaps not everything it is seeking.  Despite not getting everything it asks for, Plaintiffs might get enough information to amend its complaint and survive a motion to dismiss.  In the alternative, you might think of this as the Court allowing Plaintiffs the opportunity to obtain some documents prior to the Court dismissing its case.  Hence, it was given a chance to prove its case.

The parties are to “meet and confer” to come up with a plan for discovery.  This happens a lot in discovery disputes where the Court forces the sides to work together.  Even with the hope of compromise, we still may see issues sprout up and fights over certain requests/documents.  Clearly, Zuffa will want to protect certain information while Plaintiffs will deem it discoverable.  We shall see how expansive this discovery fight continues and whether it plays into the inevitable Motion to Dismiss.

Plaintiffs file opposition to Zuffa’s Motion to Stay Discovery

July 4, 2015

Attorneys on behalf of the plaintiffs in the UFC Antitrust Lawsuit have filed an opposition to UFC’s Motion to Stay Discovery in the lawsuit that is now in the U.S. District Court of Nevada.

You might recall that Zuffa filed a Motion to Stay Discovery pending the court decision in its Motion to Dismiss.  The Motion to Stay Discovery was to be heard September 10, 2015 when the lawsuits were in San Jose.  Since the filing, the court determined that based on the forum selection clause found in fight contracts signed by many of the plaintiffs, the venue should be transferred to the federal district court in Las Vegas, Nevada.  Zuffa argued that since there was a likelihood that the curt would grant its Motion to Dismiss and would resolve all issues, discovery would be a moot point.  It also stressed the fact that the discovery process is “extensive, burdensome and costly.”  Zuffa cited the discovery requests which seek a voluminous amount of financial information from Zuffa.   In addition, Zuffa suggested that federal courts in California evaluated a request for stay during the pendency of a dispositive motion based on whether: 1) the pending motion must dismiss the entire case (or the issue in which discovery is aimed), and; 2) whether the court may determine the motion without the discovery.  Zuffa argues that the court can dismiss the case without the need for conducting discovery.

In its opposition, plaintiffs claim that the UFC’s motion to dismiss is “highly unlikely to succeed” and due to the fact that there are factual issues to resolve, discovery is required.  It also argues that a stay of discovery would hurt the plaintiffs’ case.

Plaintiffs state that the UFC’s Motion to Dismiss raises “at least four contentions” requiring discovery.

  1. Discovery related to UFC’s assertions that its exclusive contracts with fighters, sponsors, venues and others do not substantially foreclose competition or impair rival promoters.
  2. Discovery seeking to determine whether “minor league” promoters do not compete with the UFC.
  3. Discovery related to the argument that “Plaintiffs do not show how excluding would-be rivals from access to some venues, sponsors and TV networks amounts to substantial foreclosure.”
  4. Discovery regarding the UFC challenge of the term “elite MMA fighter” used in the industry creates a factual dispute.

Perhaps a dig at the UFC, the plaintiffs’ brief (on page 4) cites Bob Arum (a noted Dana White foe) stating that the boxing promoter “pays his boxers approximately 80% of the proceeds of events.”  The brief quotes Arum: “[b]ecause of the monopoly that the UFC has, [the UFC] pay]s][its] fighters maybe 20% of the proceeds that come in on a UFC fight.”

Response to Motion to Stay Discovery


Payout Perspective:

Its the standard litigation story that one side is stalling discovery, while the other side wants to facilitate discovery.

The opposition sets forth certain discovery requests it believes necessary for its case.  Essentially, it is laying the groundwork to broker a compromise with Zuffa to allow limited discovery.  The strategy here is for the court to determine what is fair and the fact that the plaintiffs outline a proposed plan may have the court allow the discovery to “see how it goes.”  Probably not what Zuffa wants, but one could see this happening.

If Zuffa wins its motion to stay discovery, it will save a lot of time and money and the litigation will hinge on the Motion to Dismiss.  If the court sides with plaintiffs and/or grants limited discovery, the plaintiffs may have a greater opportunity to withstand a dismissal.

We will see what the court decides.

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