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.
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