On Wednesday, Judge Richard Boulware finally released his long-awaited opinion granting in part the plaintiffs in the defined ’bout class’ to move forward as a class rather than having to file individual lawsuits. The 80-page opinion details the reasoning behind the ruling and is likely the grounds to which the UFC will file its appeal.
In addition to granting class certification for the ‘Bout Class’, it denied class certification to those plaintiffs seeking damages as an ‘Identity Class.’ This class was predicated on the argument that the UFC suppressed the intellectual property rights of fighters. Essentially, the Court determined that this claim was specific to each individual fighter and could not be adjudicated as a class.
The order addressed the issue of expert evidence and motions to exclude testimony. However, Judge Boulware summarily dismissed those objections allowing evidence for both plaintiff and defendant’s experts in.
Notably, the big issue, if you remember, is the expert analysis of Dr. Hal Singer. The UFC opposed the analysis but Judge Boulware believes it was acceptable.
Judge Boulware opposed the argument offered by Defendants that the regression model could not be used for “new or emerging industries, or with new or differently defined variables.”
The order came down to whether plaintiffs showed sufficient evidence for it to proceed as a class of claimants against the UFC. There are four elements that a Court must evaluate in determining whether to grant class action status. These are numerosity, typicality, commonality and adequacy. The first and fourth elements were easily handled. Numerosity deals with the number of potential plaintiffs to consider and adequacy deals with the attorneys handling the case and whether they are able to manage and litigate a class action lawsuit.
Thus, the two big issues deal with typicality and commonality. Typicality deals with showing “the claims or defenses of the representative parties are typical of the claims or defenses of the class.
As outlined in the Order, Judge Boulware describes the UFC’s arguments against typicality and why he believed that Plaintiffs met the threshhold:
The commonality component is likely one of the main reasons why this Order took so long. Commonality depends on a “‘common contention,’ such that ‘determination of its truth or falisty will resolve an issue that is central to the validity of each…” Commonality is premised on “common questions [that] may center on ‘shared legal issues with divergent factual predicates [or] a common core of salient facts coupled with disparate legal remedies.” The UFC focused their arguments on predominance rather than commonaltiy in this analysis. Predominance is the question as to whether questions common to the class “predominate” over individualized questions and that using the class action device is “superior” to the individual pursuit of the claim.
The Olean case (aka the Tuna case), which was decided by the 9th Circuit and then appealed to the Ninth Circuit Court of Appeals was key to Judge Boulware’s decision and he paused the Order to await the decision in this case. From our post in August:
The issue central to the appeal in Olean Wholesale Grocery Co-Op v. Bumble Bee Foods, LLC (aka the Tuna case) in determining the class participants. The key takeaways from the Ninth Circuit ruling in the Tuna case is that the District Court need only determine whether plaintiffs’ evidence proves that a common question is capable of class-wide resolution and that there is no per se rule preventing certification of a class that includes more than a de minimis number of uninjured class members.
Central to the inquiry as it relates to the UFC Antitrust lawsuit is the fact that the plaintiffs’ expert(s) need not have to prove that all in the class of plaintiffs have been injured. While there may be a nominal number of uninjured class members, the argument by defendants in the Tuna case and by the UFC in the antitrust case is that more than a de minimis number of uninjured class members are a part of the class action litigation. As a result, the UFC would argue that since the experts of the plaintiffs cannot show that all of the presumed class of individuals cannot show the commonality of the injury, that the class cannot be certified. The current ruling from the Ninth Circuit that in determining class certification, the Court does NOT have to show this and only that it is capable of class-wide resolution.
Thus, the plaintiffs seeking certification need only prove a common question was capable and not necessarily evident. Judge Boulware believed that a de minimus (low amount) of plaintiffs in the class were ‘uninjured’.
The key passage from the Order citing the Tuna case:
The two key takeaways here are that individual questions should not ‘predominate’ over common questions of the class. Secondly, there need only be a capability of proving an antitrust violation or antitrust impact to prove this element.
In summation to the predominance issue, it found the following:
Payout Perspective:
This is a victory for the plaintiffs who were made to wait an inordinate amount of time for this ruling. The case moves forward despite the fact that the UFC will appeal the decision. It has 30 days to file its Notice of Appeal to the Ninth Circuit Court of Appeals. Once again, this will be a long process to endure because the parties will have time to brief the issues and then argue it and wait for an order. But at least the ball is moving slowly.
Based on the amount of time we waited for this order, the key decision was the predominance factor in class action lawsuits. Based on the legal cases, it is a hot button issue and that is likely the reason Judge Boulware waited for the disposition of the Olean decision.
This just a reminder that the plaintiffs have not proven their case. At this stage, and as written by Judge Boulware, it only shows a capability of injury and not necessarily proof of it. MPO will continue to follow.
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