GBP Opposition To Haymon Motion To Stay

Case 2:15-cv-03378-JFW-MRW Document 27 Filed 07/20/15 Page 1 of 29 Page ID #:192
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Attorneys for Plaintiffs

Golden Boy Promotions LLC and Bernard Hopkins
UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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1900 Avenue of the Stars, 21st Floor
Los Angeles, California 90067-4590
GREENBERG GLUSKER FIELDS CLAMAN

& MACHTINGER LLP
BERTRAM FIELDS (SBN 024199)

BFields@ggfirm.com
RICARDO P. CESTERO (SBN 203230)
RCestero@GreenbergGlusker.com
JAMES R. MOLEN (SBN 260269)
JMolen@GreenbergGlusker.com
GREENBERG GLUSKER FIELDS
CLAMAN & MACHTINGER LLP
Telephone: 310.553.3610
Fax: 310.553.0687
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GOLDEN BOY PROMOTIONS LLC

and BERNARD HOPKINS,
Plaintiffs,
v.
ALAN HAYMON, ALAN HAYMON
DEVELOPMENT, INC., HAYMON
SPORTS, LLC, HAYMON BOXING
MANAGEMENT, HAYMON
BOXING LLC, HAYMON BOXING:
MEDIA GROUP HOLDINGS LLC,
WADDELL & REED FINANCIAL,
INC., WADDELL & REED, INC.,
IVY ASSET STRATEGY FUND,
WRA ASSET STRATEGY, IVY
FUNDS VIP ASSET STRATEGY,
RYAN CALDWELL, and DOES 1
through 20,
Case No. CV 15-03378 JFW (MRWx)

[Assigned to Hon. John F. Walter]
PLAINTIFFS POINTS AND
AUTHORITIES IN OPPOSITION
TO DEFENDANTS MOTION TO
STAY
Hearing
Date:
August 10, 2015
Time:
1:30 p.m.
Courtroom: 16 (Spring Street)
Action Filing Date: May 5, 2015
Defendants.
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17896-00617/2411040.1
PLAINTIFFS POINTS & AUTHS. IN OPPOSITION

TO DEFENDANTS MOTION TO STAY
TABLE OF CONTENTS
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I.
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INTRODUCTION ........................................................................................... 1
II.
THE TIMING OF RELEVANT EVENTS ..................................................... 2
III.
THE ARBITRATOR DOES NOT HAVE JURISDICTION TO

DETERMINE HIS OWN JURISDICTION.................................................... 3
IV.
NOT HAVING AGREED TO ARBITRATION, PLAINTIFFS

CANNOT BE COMPELLED TO ARBITRATE ANYTHING ..................... 8
V.
EVEN IF PLAINTIFFS HAD BEEN PARTIES TO THE

CONTRACT, THE CLAIMS IN THIS ACTION ARE NOT WITHIN
ITS ARBITRATION CLAUSE .................................................................... 12
VI.
WHETHER THE CLAIMS IN THIS ACTION HAVE BEEN

RELEASED IS NOT ARBITRABLE .......................................................... 15
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VII. THE CLAIMS IN THIS ACTION HAVE NOT BEEN RELEASED ......... 15
1.
Any Release Of Post-Release Violations Would Be Void ....... 15
2.
This Action Is Based Entirely On Post-Release Conduct ........ 15
3.
The Claims Of Non-Parties To The Agreement Were Not

Released .................................................................................... 22
VIII. CONCLUSION ............................................................................................. 24
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PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION

TO DEFENDANTS' MOTION TO STAY
TABLE OF AUTHORITIES
Page
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CASES
Ajamian v. CantorCO2e, L.P.,

203 Cal.App.4th 771 (2012) ........................................................................ passim
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AT&T Technologies, Inc. v. Communications Workers of America,

475 U.S. 643, 89 L.Ed.2d 648 (1986) .................................................... 3, 6, 8, 15
Benasra v. Marciano,
92 Cal.App.4th 987 (2001) ................................................................................... 8
Carson v. Giant Food Inc.,

175 F.3d 325 (4th Cir. 1999) ............................................................................ 5, 6
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Chastain v. Union Sec. Life Ins. Co.,

502 F.Supp.2d 1072 (C.D. Cal. 2007) .................................................................. 9
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Columbia Steel Casting Co., Inc. v. Portland General Electric Co.,

111 F.3d 1427 (9th Cir. 1996) ............................................................................ 20
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DT Apartment Group, LP v. CWCapital LLC,

2013 WL 2317061 (N.D. Tex. May 28, 2013) ................................................... 22
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Fernandes v. Holland Am. Line,

810 F.Supp.2d 1334 (S.D. Fla. 2011)................................................................. 15
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First Options of Chicago, Inc. v. Kaplan,

514 U.S. 938, 131 L.Ed.2d 985 (1995) ........................................................ 3, 4, 5
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General American Life Ins. Co. Sales Practices Litig.

357 F.3d 800 (9th Cir. 2004) .............................................................................. 21
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Gilbert Street Developers, LLC v. La Quinta Homes, LLC,

174 Cal.App.4th 1185 (2009) ........................................................................... 3, 6
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Goldman v. Sunbridge Healthcare, LLC,

220 Cal.App.4th 1160 (2013) ............................................................................... 8
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Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79 (2002) ............................................................................................... 3
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In re A2P SMS Antitrust Litig.,

972 F.Supp.2d 465 (S.D.N.Y. 2013) ............................................................ 16, 17
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Ivax Corp. v. B. Braun of Am., Inc.,

286 F.3d 1309 ....................................................................................................... 9
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Jones v. Bayer Healthcare LLC,

2008 WL 3539619 (N.D. Cal. 2008) .................................................................. 11
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Kristian v. Comcast Corp.,

446 F.3d 25 (1st Cir. 2006) ................................................................................ 15
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Lee v. Southern California University for Professional Studies,

148 Cal.App.4th 782 (2007) ................................................................................. 8
McLaughlin Gormley King Co. v. Terminix Intern. Co.,

105 F.3d 1192 (8th Cir. 1997) .......................................................................... 3, 5
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MCM Partners, Inc. v. Andrews-Bartlett & Associates, Inc.,

161 F.3d 443 (7th Cir. 1998) ........................................................................ 19, 21
Melchior v. New Line Productions, Inc.,

106 Cal.App.4th 779 (2003) ............................................................................... 10
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Mitsubishi Motors v. Soler Chrysler-Plymouth,

473 U.S. 614, 87 L.Ed.2d 444 (1985) ................................................................ 16
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Oliver v. SD-3C LLC,

751 F.3d 1081 (9th Cir. 2014) ............................................................................ 20
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Oracle America, Inc. v. Myriad Group A.G.,

724 F.3d 1069 (9th Cir. 2013) .............................................................................. 7
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R.J. Griffin & Co. v. Beach Club II Homeowners Assn., Inc.,

384 F.3d 157 (4th Cir. 2004) ........................................................................ 10, 11
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Riley Mfg. Co. v. Anchor Glass Container Corp.,

157 F.3d 775 (10th Cir. 1998) .............................................................................. 5
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Ross v. Metropolitan Life Insurance Co.,

411 F.Supp.2d 571 (W.D. Pa. 2006) .................................................................. 21
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Samsung Elecs. Co. v. Panasonic Corp.,

747 F.3d 1199 (9th Cir. 2014) ............................................................................ 20
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Smith Barney, Inc. v. Sarver,

108 F.3d 92 (1997) ............................................................................................... 4
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Smith v. Smith,
2014 WL 5462023 (D. Or. 2014) ....................................................................... 11
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Vaden v. Discover Bank,

173 L.Ed.2d 206 (2009)........................................................................................ 4
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Virginia Carolina Tools, Inc. v. International Tool Supply, Inc.,

984 F.2d 113 (4th Cir. 1993) ................................................................................ 5
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Watson Carpet & Floor Covering, Inc. v. Mohawk Industries, Inc.,

648 F.3d 452 (6th Cir. 2011) ........................................................................ 20, 21
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Zenith Radio Corp. v. Hazeltine Research, Inc.,

401 U.S. 321, 28 L.Ed.2d 77 (1971) ............................................................ 20, 21
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STATUTES
Sherman Act, 28 U.S.C. 1, 2 ....................................................................... passim
Muhammad Ali Boxing Reform Act, 15 U.S.C. 6300 et seq. ....................... passim
Civil Code Section 1589 .......................................................................................... 10
OTHER AUTHORITIES
JAMS Arbitration Rule 8(b) ...................................................................................... 6
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I.
INTRODUCTION
Defendants move to stay this case so that an arbitrator can decide if
plaintiffs claims were released by a contract to which plaintiffs were not parties,
and, if their claims were not released, to allow the arbitrator to decide the merits of
those antitrust and related claims. Although essentially the same claims against
defendants are pending before this court in a related case, defendants ask that, in
this case, the same issues be arbitrated, even though plaintiffs never agreed to
arbitrate anything and the claims in this action are far outside the scope of the
arbitration agreement.
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& MACHTINGER LLP
For a number of reasons, the stay should be denied. The arbitrator does not
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have jurisdiction to decide these issues; and the issue of his jurisdiction is to be
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decided by the court, not by the arbitrator, himself. With a narrowly defined
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exception, not applicable here, an arbitrator has no jurisdiction to decide the extent
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of his own jurisdiction. Multiple state and federal cases hold that it is for a court,
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not the arbitrator, to decide such jurisdictional issues as whether litigants who were
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not parties to the arbitration agreement can be compelled to arbitrate anything, and,
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if so, whether the dispute is even one that is even arbitrable under that agreement.
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Those jurisdictional issues, in themselves, call for denial of the stay. Even if
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they had been parties to that contract (and they were not), the antitrust and related
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claims in this action are patently outside the scope of its arbitration clause, which
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limits arbitration to claims arising out of or related to the contract itself.
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And, even aside from the jurisdictional claims, there is no basis for the
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release asserted by defendants. Since plaintiffs were not parties to the contract,
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their claims were not released. And, even if they had signed the contract, its release
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was expressly limited to claims from the beginning of the world to December 18,
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2014, any purported release of Sherman Act violations after the release would have
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been void as contrary to public policy, and the complaint expressly limits the
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violations sued upon to those occurring after January 1, 2015. There is no basis for
17896-00617/2411040.1

the claim of release or for the arbitration of that or any issue in this action, and,
accordingly, there is no basis for a stay.
II.
entered into a settlement agreement (the Contract), releasing claims based on
conduct prior to that date and providing for arbitration of claims arising out of or
related to the Contract. Plaintiffs were not parties to the Contract.

On December 18, 2014, defendants and others not parties to this action

& MACHTINGER LLP
THE TIMING OF RELEVANT EVENTS.
On April 27, 2015, defendants learned that plaintiffs were prepared to file an
antitrust case against them (Ds. Ps. & As. p. 4). The next day, April 28, 2015,
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defendants filed a demand for arbitration. At that point, they did not make
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plaintiffs parties to the arbitration.
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On May 5, 2015, this action was filed by Golden Boy Promotions LLC
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(Promotions), a licensed boxing promoter, and Bernard Hopkins (Hopkins), a
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championship boxer. They alleged inter alia, multiple violations by defendants of
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Sections 1 and 2 of the Sherman Act committed after January 1, 2015. They sought
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an injunction and damages. The complaint was served on the Haymon defendants
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and defendant Ryan Caldwell on May 7,2015.
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On June 11, 2015, defendants amended their demand for arbitration to add
plaintiffs as parties.
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On July 1, 2015, Top Rank, Inc., another boxing promoter, filed action
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number CV15-04961 JFW (MRWx) against the defendants in this action (the Top
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Rank Case). The allegations of Top Ranks complaint closely resembled the
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allegations of the complaint in this action. It alleged the same forms of misconduct
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alleged by plaintiffs and sought essentially the same relief under Sections 1 and 2 of
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the Sherman Act. Plaintiffs in the Top Rank case filed and served on defendants a
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notice that it was a related case to this action.
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On July 2, 2015, defendants filed an opposition in the Top Rank Case,

representing to the court that this action and the Top Rank case were not related.
17896-00617/2411040.1



& MACHTINGER LLP
On July 6, 2015, the Top Rank case was transferred from Judge Pregerson to
Judge Walter and defendants filed their motion to stay.
III.
THE ARBITRATOR DOES NOT HAVE JURISDICTION TO
DETERMINE HIS OWN JURISDICTION.
At the outset, there are fundamental issues as to the arbitrators jurisdiction.
For example, can plaintiffs be compelled to arbitrate anything when neither of them
was a party to the contract containing the arbitration provision? If so, are the
antitrust and related claims in this action even arbitrable issues under that limited
provision? Such jurisdictional questions are for this court, not the arbitrator
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himself. The general rule is that the arbitrability of a claim and thus the
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jurisdiction of the arbitrator to decide that claim is a question for the courts, not
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the arbitrator himself. See, e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S.
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79, 83 (2002).
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There is a very narrow exception to that rule. Numerous federal and
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California cases hold that an arbitrator has no power to determine the arbitrability
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of a claim unless the parties agreement clearly and unmistakably grants the
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arbitrator that power. AT&T Technologies, Inc. v. Communications Workers of
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America, 475 U.S. 643, 649, 89 L.Ed.2d 648, 649 (1986); First Options of Chicago,
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Inc. v. Kaplan, 514 U.S. 938, 944, 131 L.Ed.2d 985, 994 (1995); Ajamian v.
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CantorCO2e, L.P., 203 Cal.App.4th 771, 789-90 (2012); Gilbert Street Developers,
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LLC v. La Quinta Homes, LLC, 174 Cal.App.4th 1185, 1195 (2009).
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The usual presumption in favor of arbitration does not apply to the issue of
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whether the arbitrator can determine his own jurisdiction. On that issue, the
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presumption is reversed; and ambiguity as to who decides the issue of arbitrability
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is to be resolved in favor of decision by the courts. First Options, supra, 514 U.S. at
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944-5, 131 L.Ed.2d at 994. McLaughlin Gormley King Co. v. Terminix Intern.
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Co., 105 F.3d 1192, 1194 (8th Cir. 1997).
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17896-00617/2411040.1

As the Sixth Circuit explained in Smith Barney, Inc. v. Sarver, 108 F.3d 92,
96 (1997), In light of the grave consequences that could potentially result from
allowing the arbitrators to define the scope of their own power and authority,
however, the Supreme Court has made clear that such an agreement must be clear
and unmistakable.1
In endorsing the clear and unmistakable test, the Supreme Court
emphasized the importance of there being real focus by the parties on the
significance of having arbitrators decide the scope of their own powers. First
Options, supra, 514 U.S. at 945, 131 L.Ed.2d at 994. 2
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& MACHTINGER LLP
The clear and unmistakable test imposes a heightened standard, higher
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than the evidentiary standard applicable to other matters of interpreting an
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arbitration agreement. This is because . . . the law is solicitous of the parties
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actually focusing on the issue. Ajamian, supra, 203 Cal.App.4th 790-91, citing
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First Option, supra, 514 U.S. at 945, 131 L.Ed.2d at 994 (emphasis in opinion).
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Even aside from the fact that plaintiffs were not parties to the Contract, it
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contains no statement granting the arbitrator the power to decide his own
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jurisdiction, much less a clear and unmistakable statement conferring that highly
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significant power. Plainly, jurisdiction to decide jurisdiction was not an issue on
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which the parties were focused.
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Defendants refer to general language in the Contract that the arbitrator has
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jurisdiction over Any and all disputes arising out of, relating to or regarding this
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Agreement including but not limited to its implementation, interpretation, validity
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and enforcement.
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Smith Barney was abrogated on other grounds Vaden v. Discover Bank,

173 L.Ed.2d 206 (2009).
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Historical note: First Options was successfully argued by Chief Justice John
Roberts. 131 L.Ed.2d at 989.
17896-00617/2411040.1



& MACHTINGER LLP
But numerous cases have held that such broad general arbitration clauses do
not constitute clear and unmistakable agreements empowering the arbitrator to
determine his own jurisdiction. Carson v. Giant Food Inc., 175 F.3d 325, 330 (4th
Cir. 1999) [Expansive general clauses will not suffice to force the arbitration of
arbitrability disputes]; Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d
775, 777, 779, 785 (10th Cir. 1998) [Ambiguity in an arbitration clause requires
arbitrability to be determined by a court; McLaughlin Gormley King Co. v.
Terminix Intern. Co., 105 F.3d 1192, 1193-4 (8th Cir. 1997); Ajamian, supra,
203 Cal.App.4th at 777, 783 [agreement to arbitrate any disputes, differences or
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controversies arising under this agreement and all matters arising in connection
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with this agreement is not clear and unmistakable agreement allowing arbitrator
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to determine his own jurisdiction].
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Even the broadest possible arbitration clause, requiring arbitration by the
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American Arbitration Association of any dispute between the parties, does not
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constitute sufficient focus on the arbitrator deciding his own jurisdiction to satisfy
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the clear and unmistakable test. Virginia Carolina Tools, Inc. v. International
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Tool Supply, Inc., 984 F.2d 113, 115, 117 (4th Cir. 1993). While any dispute
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might arguably be construed to include a dispute over the arbitrators own
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jurisdiction, those words were not deemed sufficiently focused to empower the
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arbitrator to decide such issues.
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By definition, a provision that is ambiguous cannot be clear and
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unmistakable. Thus ambiguity, like a lack of focus on the jurisdictional issue,
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will prevent an arbitration clause from meeting the clear and unmistakable test
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and permitting the arbitrator to decide his own jurisdiction. First Options, supra,
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514 U.S. at 945, 131 L.Ed.2d at 994; Riley Mfg. Co., supra, 157 F.3d at 781.
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None of the words in the general arbitration clause here clearly and
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unmistakably grant the arbitrator power to decide on his own jurisdiction or show
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that the parties focused on the issue. None of those words, such as relating
17896-00617/2411040.1

to . . . this agreement or implementation or enforcement of the agreement is
free of ambiguity. Similarly, as the court opined in Carson, supra, quoting the
Supreme Courts opinion in AT&T and citing other cases, a provision for
arbitration of disputes over interpretation of the agreement does not have a
specific enough meaning to constitute a clear and unmistakable agreement
permitting the arbitrator to determine arbitrability and thus his own jurisdiction.
175 F.3d at 329-30.


& MACHTINGER LLP
In Carson, the court also observed that parties who really want an arbitrator
to decide which issues are arbitrable can easily say so clearly, distinctly and without
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ambiguity. 175 F.3d at, 330-1. That is certainly true here. The parties were
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represented by experienced counsel. They took the time to specify that the
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arbitrator could decide such things as whether and how discovery will be
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conducted, whether and how evidence will be presented, the nature of any briefing
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and argument and the venue of any such proceeding (Contract par. 6.1). They
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could easily have stated clearly and unmistakably that the arbitrator has the
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power to decide the arbitrability of issues or the extent of his own jurisdiction,
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or similar specific words showing the parties focus on that important issue. They
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did not, and neither their general language nor any of their specific examples can
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satisfy the clear and unmistakable test of the cases.
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As a backup argument, defendants represent that the entire body of the JAMS
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arbitration rules were incorporated by reference in the Contract and that Rule 8(b)
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of those rules would permit the arbitrator to decide issues of arbitrability. They
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argue, therefore, that the requirement of a clear and unmistakable grant of
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jurisdiction to determine jurisdiction has been satisfied.
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There has been a split of authority on whether incorporating by reference an
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entire body of arbitration rules, shows a sufficient focus by the parties on giving
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the arbitrator the power to determine his own jurisdiction to satisfy the clear and
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unmistakable test. See Ajamian, supra, 203 Cal.App.4th at 789-91; Gilbert Street,
17896-00617/2411040.1

supra, 174 Cal.App.4th at 1195-6 (collecting cases). The California Supreme Court
has not ruled on the issue. But, in a case not cited in defendants moving papers,
the Ninth Circuit has held that, at least on the facts before it, a clear and
unambiguous incorporation of the UNCITRAL rules was sufficient. Oracle
America, Inc. v. Myriad Group A.G., 724 F.3d 1069, 1074 (9th Cir. 2013).


& MACHTINGER LLP
However, this court need not decide the efficacy of an incorporation by
reference. For arbitrations conducted by Judge Weinstein (the arbitrator in
question), the JAMS rules were referred to, but were not incorporated by
reference. Paragraph 6.1 of the settlement agreement provides that the arbitration
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would only be determined by the JAMS rules in the absence of any decision by
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Judge Weinstein (emphasis added).
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One thing is clear from this somewhat ambiguous language. Judge
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Weinstein is not bound by the JAMS rules, even if the provision allows him to
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select some, all or none of them. The fact that the JAMS rules are not incorporated
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by reference here is made even more clear by contrasting the provision governing
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Judge Weinsteins arbitrations with that governing arbitrations conducted by
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Lizbeth Hasse. Paragraph 6.1 provides that, if the arbitration is before Ms. Hasse,
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she shall conduct the arbitration pursuant to the JAMS Streamlined Arbitration
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Rules and procedures. That is an incorporation by reference. There is no similar
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requirement that Judge Weinstein shall conduct the arbitration pursuant to the
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JAMS rules. On the contrary, he need not apply any of those rules. Contrary to
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defendants representation, the parties have not incorporated by reference the entire
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body of JAMS rules or any particular rule in that body of rules; and the contract
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language certainly does not constitute a clear and unmistakable agreement of the
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parties to cede to the arbitrator the power to rule on his own jurisdiction.
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In Ajamian, for example, the court held that a contract granting the party
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demanding arbitration the right to select the applicable rules is not a clear and
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unmistakable agreement empowering the arbitrator to decide jurisdictional issues,

17896-00617/2411040.1

even though such a rule could have been selected. Ajamian, supra,
203 Cal.App.4th at 791. Thus, even a contract permitting a choice of applicable
rules, which might or might not result in the selection of a rule permitting the
arbitrator to decide on his own jurisdiction, does not show the parties focus on
the significance of giving the arbitrator that power and does not satisfy the clear
and unmistakable test.
There being no clear and unmistakable agreement of the parties ceding to
the arbitrator jurisdiction to determine his own jurisdiction, such decisions are for
this court and provide no basis for a stay.
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IV.
NOT HAVING AGREED TO ARBITRATION, PLAINTIFFS
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CANNOT BE COMPELLED TO ARBITRATE ANYTHING.
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The first jurisdictional issue for the court is whether parties who have not
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agreed to arbitrate can be compelled to. The answer is no. As the Supreme Court
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put it, Arbitration is a matter of contract and a party cannot be required to submit
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to arbitration any dispute which he has not agreed so to submit. AT&T
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Technologies, supra, 475 U.S. 643, 649, 89 L.Ed.2d 648, 656 (1986).
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California law is the same. [t]he strong public policy in favor of arbitration
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does not extend to those who are not parties to an arbitration agreement, and a party
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cannot be compelled to arbitrate a dispute that he [or she] has not agreed to resolve
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by arbitration. Goldman v. Sunbridge Healthcare, LLC, 220 Cal.App.4th 1160,
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1178 (2013) quoting Lee v. Southern California University for Professional Studies,
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148 Cal.App.4th 782, 786 (2007); Benasra v. Marciano, 92 Cal.App.4th 987, 990
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(2001).
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Hopkins and Promotions are the sole plaintiffs in this action. While they do
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have relationships with parties to the Contract, neither was a party to that Contract,
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and neither has agreed to arbitrate anything. Accordingly, plaintiffs cannot be
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compelled to arbitrate, and the arbitrator has no jurisdiction to decide any of the
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issues for which defendants seek a stay.

17896-00617/2411040.1

Hopkins, for example, is a champion boxer who, like other elite boxers, has
his own, independent claims against defendants (E.g., Complaint pp. 5-7, 8-9, 22-
23). He is the holder of a minority share of the equity in an LLC that is a party to
the contract. But, defendants provide no basis to pierce the corporate veil (or in
this case the veil of a valid LLC) to make Hopkins obligated under the Contract
merely because he owns that minority share.


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Defendants repeatedly accuse plaintiffs of artful pleading, because they
would restrict arbitration to the claims of parties to that agreement and have limited
the conduct on which they are suing to post-release conduct. The accusation is
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without merit. Defendants appear to have searched for all cases using the phrase
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artful pleading. But the cases they cite are manifestly inapposite. Defendants
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quote dicta from two cases to the effect that a party to an arbitration contract cannot
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simply add a non-party defendant as a device to avoid arbitration. In both cited
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cases, the courts held this principle inapplicable. See Ivax Corp. v. B. Braun of
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Am., Inc., 286 F.3d 1309, 1318 (11th Cir. 2002 [D. Pts. & A. p. 8]; Chastain v.
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Union Sec. Life Ins. Co., 502 F.Supp.2d 1072, 1081 (C.D. Cal. 2007) [D. Pts. & A.
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p. 9].
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But, in our case, no party to an arbitration contract has added a non-party
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defendant or plaintiff in order to avoid arbitration. There are only two plaintiffs and
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neither was a party to the arbitration agreement. Both have claims against
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defendants. No one has been added to defeat arbitration.
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Stretching to come within the dicta in the inapposite cases they cite,
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defendants make an unsupported (and untrue) factual claim. They assert that
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respondents named Promotions and Hopkins as the plaintiffs in the federal action
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because they were not parties to the Contract (Ds Ps. & A. pp. 1-2, 8-9). They
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provide no evidentiary support for that assertion, and it is demonstrably untrue.
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Promotions was chosen because it is a licensed boxing promoter and thus the
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proper plaintiff for this antitrust action. Hopkins was chosen because he is a
17896-00617/2411040.1

champion boxer, and, like other such boxers, will be harmed by Haymons
unlawful conduct. Their not being parties to the Contract was not a consideration.
Defendants also contend that plaintiffs should be bound because they
accepted direct benefits under the Contract. They did not. The supposed direct
benefit is that plaintiffs could be third party beneficiaries of the release provision,
on the theory that Promotions is an affiliate of a party and Hopkins is claimed
(incorrectly) to be a stockholder. 3 But neither Hopkins nor Promotions has
sought or accepted any benefit under the contract nor have they asserted a right to
any benefit in any way.
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In California, the extent to which a non-party can become obligated by
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accepting the benefits of a contract is set out in Civil Code Section 1589, which
12
provides that A voluntary acceptance of the benefit of a transaction is equivalent to
13
a consent to all the obligations arising from it, so far as the facts are known, or
14
ought to be known, to the person accepting. See, e.g., Melchior v. New Line
15
Productions, Inc., 106 Cal.App.4th 779, 788-90 (2003). A person named as a third
16
party beneficiary of a contract is not bound by its obligations, unless his voluntary
17
acceptance of the contractual benefits is shown. There is no such showing here.
18
Neither Hopkins nor Promotions has claimed to be released from anything or has
19
sought or accepted any other benefit under the contract.
20
Defendants quote part of a sentence from dicta in R.J. Griffin & Co. v. Beach
21
Club II Homeowners Assn., Inc., 384 F.3d 157, 164 (4th Cir. 2004) [D. Pts. & A.
22
p. 8], that a party may not use artful pleading to avoid arbitration. The omitted
23
balance of the sentence is when in substance . . . [it] is attempting to hold [a party]
24
to the terms of an agreement [ellipsis and brackets in opinion]. In other words, if a
25
party takes action to enforce an agreement containing an arbitration clause, he may
26
have to arbitrate. The R.J. Griffin court denied the motion to compel arbitration
27
28
Hopkins owns a minority interest in an LLC that is a party to the agreement.
17896-00617/2411040.1
10

(id. at 161). And, in any event, its dicta has no bearing here. Plaintiffs have taken
no action to enforce the Contract.


& MACHTINGER LLP
Defendants two other cases are also inapposite. In Jones v. Bayer
Healthcare LLC, 2008 WL 3539619 (N.D. Cal. 2008) [D. Pts. & A. p. 8], the court
held a union member bound by his unions collective bargaining agreement. And
in Smith v. Smith, 2014 WL 5462023 (D. Or. 2014) [D. Pts. & A. p. 9], plaintiff
sued her brother-in-law and a corporation. The court held the case against the
brother-in-law was arbitrable, but that, since the corporation was not a party to the
arbitration agreement, it could not seek arbitration. id. at *7.
10
As a backup to their artful pleading and direct benefit arguments,
11
defendants point to paragraph 8.6 of the Contract, which provides that its terms are
12
binding on successors, assigns, administrators, executors, stockholders
13
etc. But the cited provision simply means that the listed types of non-parties are
14
bound by the provision requiring that the claims of the contracting parties be
15
arbitrated. It does not mean that, in addition, all claims that happen to be owned by
16
all successors, assigns, executors, employees, etc. have also become
17
arbitrable.
18
For example, if Oscar De La Hoya, a party to the contract, assigns a claim
19
against a Haymon entity to CBS, paragraph 8.6 requires CBS, as the assignee, to
20
arbitrate De La Hoyas claims against the Haymon entity. But that does not mean
21
that, if CBS has its own claims against the Haymon entity, CBS will now be
22
compelled to arbitrate those claims, because it has become an assignee of a claim
23
from De La Hoya.
24
And if De La Hoya were to die and the Bank of America became his
25
executor or administrator, paragraph 8.6 would require the Bank to arbitrate De
26
La Hoyas claims against the Haymon entity. But, if the Bank had its own claim on
27
a promissory note against the Haymon entity, the Bank would certainly not be
28
obligated to arbitrate that claim.

17896-00617/2411040.1
11

Similarly, if Hopkins, a non-party to the arbitration agreement, were a
stockholder of a corporate party to that agreement, any derivative action he might
bring to enforce a claim by that corporation against a Haymon entity would be
arbitrable. But, as a non-party, Hopkins would not be compelled to arbitrate his
own claims against that Haymon Entity.


& MACHTINGER LLP
Defendants argue that the language in paragraph 8.6 making the terms of the
Contract binding upon each of the listed types of non-parties means one thing
when applied to certain of those non-parties, but has a different and much broader
meaning when applied to other non-parties on the same list. Defendants contend
10
that those words bind some listed non-parties, such as heirs, executors,
11
administrators and assigns only to arbitration of the claims of parties to the
12
Contract, but that the same words in the same sentence bind other non-parties in the
13
same list, such as stockholders and employees to the arbitration not only of the
14
parties claims, but, in addition, compel arbitration of the stockholders and
15
employees own claims. Defendants argument, giving the same words in the
16
same sentence a different meaning, depending on which of the non-parties in the
17
same list is involved, defies logic and ordinary principles of contract interpretation.
18
V.
EVEN IF PLAINTIFFS HAD BEEN PARTIES TO THE CONTRACT,
19
THE CLAIMS IN THIS ACTION ARE NOT WITHIN ITS
20
ARBITRATION CLAUSE.
21
The next jurisdictional question for decision by the court is whether the
22
claims in this action come within the scope of the arbitration clause. They do not.
23
Even if plaintiffs had signed the Contract, the arbitrator could only have
24
jurisdiction if the disputed claims fall within the scope of its arbitration clause. The
25
arbitration clause is in paragraph 6.1 of the Contract. It provides that the claims to
26
be arbitrated are disputes arising out of, relating to, or regarding this
27
Agreement (emphasis added). The provision then gives examples of such
28
contract-based disputes.
17896-00617/2411040.1
12

Plaintiffs claims in this action are far outside the scope of that provision.
Plaintiffs four antitrust claims allege that, since January 1, 2015, defendants have
attempted to create a monopoly and engaged in various other forms of conduct
violative of Sections 1 and 2 of the Sherman Act. Those claims in no way arise
from or relate to the Contract. They would exist, even if there were no contractual
relationship between the parties, and they do not impact the contract rights or duties
of the parties. The same is true of the fifth claim for unfair competition, which is
based on the facts incorporated by reference from the four antitrust claims and, like
the antitrust claims, is limited to acts after January 1, 2015.
10

& MACHTINGER LLP
The federal claims present numerous antitrust issues, such as the definitions
11
of the relevant product market and of the relevant geographic market, the existence
12
of barriers to entry, elasticity or inelasticity of demand, the definition and degree of
13
market domination, the use of dominant power in one market to achieve monopoly
14
power in another market, the doctrines of tying in and tying out, locking in
15
and locking out, the existence of antitrust damages and many other such issues
16
none of which have anything to do with the Contract and all of which require
17
extensive discovery and expert testimony.
18
And other parts of the Contract show that such claims were never intended to
19
be the subjects of arbitration. For example, if plaintiffs were compelled to arbitrate
20
their antitrust claims, paragraph 6.1 of the Contract would bar them from obtaining
21
and examining any financial records of the principal defendants. That would make
22
it virtually impossible to pursue the antitrust claims, and the existence of that
23
provision strongly supports the conclusion that the arbitration clause was intended
24
to cover straightforward claims arising from the contract itself, such as claims
25
asserting a breach of the Contract, but not complex economic and financial issues
26
27
28
17896-00617/2411040.1
13

unrelated to the Contract itself and requiring extensive discovery, such as those
raised by the federal antitrust claims. 4

Essentially, defendants have made three responses on this issue, each of


& MACHTINGER LLP
3
4
which is unavailing. Defendants have argued that this action arises out of the
Contract (and so is arbitrable) based on defendants assertion that it was filed in
retaliation for Haymons election to terminate the Contract. That claim is
unsupported by competent evidence and is provably untrue. Moreover, a claim
may arise from a contract if it is based on the terms of the contract, but not
because of a partys personal motivation in asserting the claim.
10
Defendants have also argued that, because paragraph 3 of the Contract deals
11
with inducing boxers not to contract with Golden Boy, this makes all of the claims
12
in this action arbitrable as being related to the Contract. Among the fatal defects in
13
that argument is the fact that the provisions of paragraph 3 were in effect only
14
during the Term; and the Haymon Defendants elected to end the Term on
15
January 8, 2015, only 3 weeks after the Contract was signed. And, even if
16
paragraph 3 were still in force, its very limited provisions wouldnt come close to
17
making all the antitrust and related claims in this action arbitrable.
18
Finally, defendants have asserted that paragraph 7 of the Contract deals with
19
potential violations of the Muhammad Ali Boxing Reform Act, 15 U.S.C. 6300 et
20
seq. (the Ali Act), so that a claim of such violations is arbitrable. But this too is
21
incorrect. Paragraph 7 simply contains warranties that, as of December 18, 2014,
22
there have been no past violations of the Ali Act and provides for arbitration if such
23
past violations are claimed. Nothing in the paragraph deals with potential future
24
25
26
27
28
As discussed above, a related case has been filed by Top Rank Inc., another
boxing promoter, asserting very similar claims under Section 1 and 2 of the
Sherman Act against the same defendants. Defendants sought to keep the two cases
separate by representing to the court that they are not related. Defendants seek
again to separate the cases by having one case arbitrated, while the other is tried.
Since the issues will be the same, having the Top Rank case tried in this court,
while same issues in this case are arbitrated, would lead to needless duplication of
time and expense, and could produce inconsistent findings and judgments.
17896-00617/2411040.1
14



& MACHTINGER LLP
violations or could possibly be construed as requiring arbitration of such post-
contract violations.
VI.
WHETHER THE CLAIMS IN THIS ACTION HAVE BEEN
RELEASED IS NOT ARBITRABLE.
As discussed above, because plaintiffs were not parties to the arbitration
agreement, they cannot be compelled to arbitrate whether their claims in this action
have been released. E.g., AT&T Technologies, supra, 89 L.Ed.2d at 656. Nor does
paragraph 8.6 of the agreement make arbitration of the claims owned by non-parties
(see p. 12, supra). Here again, such jurisdictional issues are for this court, not the
10
arbitrator.
11
VII. THE CLAIMS IN THIS ACTION HAVE NOT BEEN RELEASED.
12
Defendants argue that every one of plaintiffs claims in this action have been
13
released based on paragraph 4.3 of the Contract. There are at least three separate
14
and independent answers to that case dispositive argument.
15
1.
Any Release Of Post-Release Violations Would Be Void.
16
Defendants argue that the release provision of the Contract, which released conduct
17
only through December 18, 2014, also releases the same type of conduct thereafter.
18
Not only is there no basis for such a construction of the provision, that construction,
19
purporting to release subsequent violations of the Sherman Act, would be void as
20
contrary to public policy. No agreement to waive, release or forgive future
21
violations is valid or enforceable. See Mitsubishi Motors v. Soler Chrysler-
22
Plymouth, 473 U.S. 614, 637 n.19, 87 L.Ed.2d 444, 462 n.19 (1985), (collecting
23
cases); Kristian v. Comcast Corp., 446 F.3d 25, 47-8 (1st Cir. 2006); Fernandes v.
24
Holland Am. Line, 810 F.Supp.2d 1334, 1338 (S.D. Fla. 2011).
25
2.
This Action Is Based Entirely On Post-Release Conduct.
26
The Contract releases only claims from the beginning of time through the date
27
of the execution of this Agreement, i.e. through December 18, 2014 (Agreement,
28
par. 4.3 p. 10).

17896-00617/2411040.1
15

In the very first paragraph of its FACTUAL ALLEGATIONS, the
complaint expressly limits the claims on which they are suing to the acts of
defendants after January 1, 2015. Paragraph 6 of the Complaint, incorporated by
reference in every claim, makes this explicit. It states: This complaint is based
upon the acts of the defendants commencing on January 1, 2015. Defendants
conduct prior thereto has been alleged in some instances to establish defendants
knowledge, motive and/or intention in carrying out their unlawful activities
thereafter (emphasis added). Plaintiffs do not seek any relief based on conduct of
defendants prior to January 1, 2015. There is no doubt or ambiguity about this, and
10
11

& MACHTINGER LLP
plaintiffs had an absolute right to limit the facts on which their claims are based.
Although, as discussed above, any attempt to release post-release violations
12
would have been void, plaintiffs took a belt and suspenders approach and
13
explicitly limited their claims to post-release conduct, seeking to avoid any
14
argument that the claims on which this action is based have been released.
15
Defendants cite In re A2P SMS Antitrust Litig., 972 F.Supp.2d 465, 495
16
(S.D.N.Y. 2013) [D. Pts. & A. p. 9]. A2P is about an arbitration provision, not a
17
release; and, as discussed, future violations cannot be validly released, even if
18
future disputes can be arbitrated. But even if A2Ps holding were extended to
19
releases, it would still not aid defendants. The case holds that, if the acts on which
20
the plaintiff sues occur during the period covered by the arbitration agreement, the
21
plaintiff cannot avoid arbitration by agreeing to limit his damages to those
22
occurring beyond the period covered by the arbitration clause.
23
Thus, the A2P court held that even though the plaintiff was willing to forego
24
damages incurred during the period covered by of the arbitration clause, plaintiffs
25
theory of liability extends the temporal scope of the allegations such that their
26
claims do fall within the scope of the [arbitration clause]. The court adds that,
27
because the factual basis for the claims asserted in the complaint clearly falls
28
within the scope of the broad arbitration clause in [the agreement], plaintiffs
17896-00617/2411040.1
16

willingness to limit its damages to the period outside the period covered by the
arbitration agreement did not preclude arbitration. id. at 495 (emphasis added).
3
4
their damages, as in A2P. The facts on which their claims are based are expressly
and strictly limited to those occurring after January 1, 2015, while the only claims
released by the Contract the only claims that could legally be released are those
based on facts occurring before December 18, 2014.


& MACHTINGER LLP
That is not the situation here. Plaintiffs are not merely offering to reduce
Sometime, defendants argue that plaintiffs entire case is based on
defendants pre-release conduct. That is simply wrong. Plaintiff is suing for
10
multiple instances of unlawful conduct after January 1, 2015, including, for
11
example, repeated violations of the Ali Act during 2015, such as promoting
12
numerous arena bouts during 2015 while acting as a manager, or repeatedly
13
promoting bouts on network television in 2015 while acting as a manager, or acting
14
during 2015 to exclude plaintiffs from network television deals or from booking
15
major arenas. If there were such acts prior to December 28, 2014, they are not sued
16
upon; and they certainly do not (and legally could not) prevent plaintiffs suing for
17
such violations after January 1, 2015.
18
At other points, defendants argue that the same kind of acts on which
19
plaintiffs are suing occurred before December 28, 2014 and that this precludes
20
plaintiffs suing for the same kind of acts committed after January 1, 2015. That
21
argument too is unavailing. If defendants trespass on plaintiffs land in 2014, and
22
the parties settle and execute a release for all conduct prior to December 18, 2014,
23
and, then, after January 1, 2015 defendant trespasses on plaintiffs land again,
24
plaintiff is certainly not barred by the earlier release from suing defendant and
25
limiting his claims to the 2015 trespass. Defendants would argue that this limit
26
should be disregarded as artful pleading; but that is not the law.
27
28
Similarly, even if defendants here had violated the Sherman Act or the Ali
Act by conduct prior to December 18, 2014, a release of all claims through that date
17896-00617/2411040.1
17

would not bar an action for new violations of the Sherman Act or the Ali Act
occurring after January 1, 2015. Indeed, as discussed above, a release of such
future violations would be void as against public policy.


& MACHTINGER LLP
And, defendants totally misconceive the allegations of the complaint. They
argue that Haymon managed 100 boxers even before January 1, 2015, as if that
defeats the plaintiffs claims. But the plaintiffs are not seeking relief for Haymons
managing 100 boxers or for a pre-existing dominance or monopoly in the
management business. One of their claims is that defendants are currently using
that pre-existing monopoly in the business of managing boxers to create a new
10
monopoly in a different business, that of promoting boxing matches. That attempt
11
to obtain a new monopoly in the promotion business, not Haymons preexisting
12
dominance in the management business, is one of the grounds for plaintiffs
13
recovery under the Sherman Act.
14
That preexisting power in the management business is simply a means of
15
attempting to monopolize the promotion business in violation of the Act. But,
16
plaintiffs are suing on the attempt to create a new monopoly in promoting fights,
17
not on defendants preexisting control of managing boxers. In any event, plaintiffs
18
alternate claim under Section 2 of the Sherman Act is that defendants are also
19
attempting to create the promotional monopoly by illegal post-release acts, such as
20
their numerous violations of the Ali Act and repeated instances of exclusionary
21
conduct during 2015.
22
Defendants stress that they had an agreement with Waddell & Reed and with
23
two networks before January 1, 2015. That would hardly defeat plaintiffs claims,
24
even if those earlier agreements contained violations of the law. Other unlawful
25
network agreements were made in 2015, and there were many more acts by
26
defendants to exclude plaintiffs from dealing with networks and booking arenas that
27
were violations of the law, as well as violations of the Ali Act, all of which clearly
28
occurred after January 1, 2015. Moreover, we have no competent evidence of what

17896-00617/2411040.1
18

was contained in the few agreements to which claimants refer. The pre-release
Waddell & Reed agreement may simply have been to provide financing for the
proposed purchase of Golden Boy, which was never completed and is not one of the
combinations for which plaintiffs seek recovery. We do not know what was in the
two earlier agreements with networks. They may also have been irrelevant to the
claims in this action, such as that, during 2015, the defendants have acted to
exclude plaintiffs from network transactions.


& MACHTINGER LLP
Defendants also argue that the 2014 release bars all of plaintiffs claims of
post-release conduct. But, as discussed above, if the Contract were to be construed
10
as releasing claims based on post-release conduct, it would be void as contrary to
11
public policy. Defendants argue that post-release acts in furtherance of a pre-
12
release conspiracy are not separate violations. They are not correct. In any event,
13
as the complaint shows, plaintiffs are not relying on pre-release conspiracies carried
14
out by post-release acts. And, if they were, defendants contention would still be
15
incorrect. Defendants moving papers cite no cases that support this argument.
16
They have previously referred to the cases on which they rely, and plaintiffs
17
anticipate that they have held such cases for use in their reply. For example,
18
although it is not cited in their moving papers, defendants have previously placed
19
their principal reliance on MCM Partners, Inc. v. Andrews-Bartlett & Associates,
20
Inc., 161 F.3d 443 (7th Cir. 1998). In MCM Partners, the plaintiff released his
21
claim that defendants had entered into a pre-release conspiracy to prevent certain
22
defendants doing business with plaintiff in violation of the Sherman Act. Later,
23
plaintiff sued claiming that a defendant was refusing to do business with him. The
24
court held that the release barred the earlier conspiracy, that there was no post-
25
release combination or conspiracy and that the post-release conduct was simply
26
a unilateral refusal to deal, which the court held is non-actionable. Thus, the
27
court held [the plaintiffs] claims based on pre-release conspiracy are barred, and
28
[the plaintiff] fails to present any evidence of post-release violations. (id. at 449).
17896-00617/2411040.1
19

Of course, the complaint here is replete with evidence of post-release
violations. For example, there are the repeated violations of the Ali Act by
promoting numerous boxing matches in 2015, while acting as a manager. There are
also the 2015 agreements locking out plaintiffs, by actions, in 2015, to exclude
plaintiffs from network TV and from booking major arenas. There is the 2015
attempt by defendants to obtain a monopoly of the promotion business by their
current violations of the Ali Act and other laws, and also by their currently using
their dominance in the management business to create a monopoly in the promotion
business.
10

& MACHTINGER LLP
But even if the federal action had alleged only a single pre-release conspiracy
11
and the post-release acts were all committed pursuant to that same conspiracy,
12
defendants argument would still be incorrect and inapplicable. Each act pursuant
13
to an illegal conspiracy is a separate violation of the Sherman Act. Because of that
14
rule, for example, plaintiff may recover for acts pursuant to a continuing conspiracy
15
even if committed after the statute of limitations has run on the conspiracy itself.
16
Because each such act is a new and separate violation, a new statutory period
17
begins to run each time an act pursuant to the conspiracy is committed. Zenith
18
Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 28 L.Ed.2d 77, 92
19
(1971); Oliver v. SD-3C LLC, 751 F.3d 1081, 1085 (9th Cir. 2014); Samsung
20
Elecs. Co. v. Panasonic Corp., 747 F.3d 1199, 1202-3 (9th Cir. 2014); Columbia
21
Steel Casting Co., Inc. v. Portland General Electric Co., 111 F.3d 1427, 1444-5 (9th
22
Cir. 1996).
23
Because of the rule that each act to carry out a pre-existing conspiracy is a
24
new and separate violation of the antitrust laws, the release of a prior conspiracy
25
does not (indeed, it cannot) release post-release conduct pursuant to that conspiracy.
26
The court dealt squarely with this issue in Watson Carpet & Floor Covering, Inc. v.
27
Mohawk Industries, Inc., 648 F.3d 452, 454, 461 (6th Cir. 2011). The complaint
28
there alleged a single pre-release conspiracy and post-release acts pursuant to that
17896-00617/2411040.1
20

conspiracy just the situation defendants claim (incorrectly) is the case here.
Citing the Supreme Courts decision in Zenith, the court held that a mid-
conspiracy settlement does not preclude liability for a co-conspirators subsequent
actions that further the conspiracy. id. at 461. The Watson court found MCM
Partners not to be a reliable precedent, stating that From our vantage point, the
facts of MCM Partners are unclear . . . The Seventh Circuit offered too little
reasoning on the issue for its conclusion to persuade us. 648 F.3d at 461.


& MACHTINGER LLP
Of course, even if it were effective authority, MCM Partners is patently

distinguishable. Plaintiffs here are not suing on any pre-release conspiracy. They
10
allege new combinations and conspiracies after the release, plus numerous
11
individual acts in 2015 violating the Ali Act and the Sherman Act and independent
12
of any pre-existing conspiracy, as well as a current and ongoing attempt to create a
13
new monopoly in the business of promoting fights by post-release violations of the
14
law.
15
The other cases on which defendants have previously relied are also
16
unavailing. In Ross v. Metropolitan Life Insurance Co., 411 F.Supp.2d 571 (W.D.
17
Pa. 2006), plaintiffs claimed fraud, breach of fiduciary duty and other misconduct
18
in concealing that the insurance policies they were issuing to plaintiffs were more
19
costly and provided lower dividends than plaintiffs believed. After the policies
20
were issued and some higher premiums paid, the parties reached a settlement and
21
signed a release. Although some of the damages (such as paying higher premiums)
22
were incurred after, as well as before the release, the court held that the wrongful
23
conduct itself occurred when the polices were issued, which was well before the
24
release. In our case, the federal action alleges numerous instances of unlawful
25
conduct after the release not merely that post release damages were incurred from
26
unlawful conduct before the release.
27
28
Similarly, General American Life Ins. Co. Sales Practices Litig., 357 F.3d
800 (8th Cir. 2004), turned on a fraud claim that, before the release, the defendants
17896-00617/2411040.1
21

failed to disclose that the payment plan chosen by plaintiff would be more costly
than an alternative. Since, here again, the fraud occurred before the release, the fact
that plaintiff incurred some of the damages by paying higher premiums after the
release did not prevent application of the release.

And, DT Apartment Group, LP v. CWCapital LLC, 2013 WL 2317061 (N.D.
Tex. May 28, 2013), involved a claim of tortious conduct by defendant regarding
the application of loan documents signed prior to the release of any claims. The
court held that the claims were held released, because the tortious conduct sued
upon occurred prior to the release.
10

& MACHTINGER LLP
The allegations in our case are not just that plaintiffs incurred damages after
11
the release from a wrongful act committed before the release. The complaint
12
alleges numerous instances of wrongful conduct and even new combinations and
13
conspiracies in violation of the Sherman Act , all of which occurred in 2015 after
14
the release. Since the acts on which plaintiffs base their claims in this action are
15
expressly limited to conduct after January 1, 2015, those post-settlement claims
16
have not been released.
17
3.
The Claims Of Non-Parties To The Agreement Were Not
18
Released. Although it is unnecessary, there is a second and independent reason
19
why the claims in this action were not released by the Contract. Since neither
20
plaintiff was a party to the Contract containing the release provision, that Contract
21
did not release their claims.
22
As in the case of the arbitration provision, defendants rely on paragraph 8.6
23
of the contract, which provides that the agreement shall be binding upon the
24
parties successors, assigns, administrators, executors, stockholders, affiliates, etc.
25
Just as they contend that this paragraph expands what is arbitrable to claims owned
26
by any successors, assigns, administrators, stockholders, etc., they argue that
27
paragraph 8.6 expands the scope of the releases under paragraph 4, so that not only
28
are the listed non-parties bound to honor the release of the parties claims, but, in
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22



& MACHTINGER LLP
addition, that all claims of any kind that happen to be owned by any of the non-
party successors, assigns, administrators, executors affiliates, etc. are
also released. But, paragraph 8.6 purports to make the existing terms of the
agreement binding upon the listed non-parties, not to expand or change those terms.
In paragraph 4, the parties to the Settlement Agreement released their own claims
against the other parties. Those are the only claims the parties could release. The
parties to the agreement could have indemnified defendants against claims by non-
parties, such as Bernard Hopkins, but they couldnt simply release Hopkins own
claims. And it is only the release of the parties claims that paragraph 8.6 could
10
seek to make binding on successors, assigns, executors, affiliates, etc., not claims
11
owned by such non-parties themselves. 5
12
The same hypotheticals that show the limit of the arbitration clause also show
13
the limit of the release provision. If Oscar De La Hoya assigned a claim against
14
defendant Haymon Sports to CBS, paragraph 8.6 would prevent CBS, as an
15
assign, from enforcing De La Hoyas claim against Haymon Sports, because, as a
16
party to the Contract, De La Hoya released his claims. But, paragraph 8.6 does not
17
mean that the scope of the release itself is expanded, so that, if CBS happens to
18
have its own claims against Haymon Sports, those claims are now released, because
19
CBS received an assignment of De La Hoyas claim.
20
And, if De La Hoya died and the Bank of America became the executor or
21
administrator of his estate, paragraph 8.6 would prevent the Bank from enforcing
22
De La Hoyas claims against Haymon Sports, but the Banks own claim against
23
Haymon Sports on a promissory note would certainly not be released by
24
paragraph 8.6.
25
26
27
28
By analogy, if an agreement allows A to occupy Bs apartment, a provision

making the terms binding on successors, assigns and affiliates would, at most,
prevent successors, assigns and affiliates from denying A access to Bs apartment,
but it would not allow A to occupy the apartments of the successors, assigns or
affiliates.
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23



& MACHTINGER LLP
Similarly, if Hopkins had been a stockholder of a party to the Settlement
Agreement, paragraph 8.6 would mean, at most, that, as a stockholder, Hopkins
might be bound to honor the release of the contracting partys claim against A
Haymon entity. For example, if, as a stockholder of a contracting corporation,
Hopkins filed a derivative action to enforce that corporations claim against a
Haymon entity, that entity might argue that Hopkins action violated the release
provision of the Settlement Agreement. But, even if, as a non-party to the
agreement, Hopkins would violate that agreement by asserting the continued
validity of the contracting entitys released claim, it does not mean that the scope of
10
the release itself has been altered and expanded to wipe out Hopkins own claims
11
against Haymon, even though Hopkins was not even a party to the Contract.
12
But, again, because, in this action, plaintiffs have sued only for conduct
13
occurring after January 1, 2015, their claims have not been released, and there is no
14
need for the arbitrator even to reach the effect of paragraph 8.6 on the claims of
15
persons or entities that were not even parties to the agreement.
16
VIII. CONCLUSION.
17
Having attempted to keep this action separate from the Top Rank Case by
18
representing to the court that they are unrelated, defendants continue their effort
19
to litigate the cases separately by moving to stay this action so that, contrary to
20
federal and state law, an arbitrator can determine his own jurisdiction and compel
21
non-parties to the arbitration agreement to arbitrate their antitrust and related claims
22
that are far outside the scope of the arbitration agreement. Based on the foregoing,
23
it is respectfully requested that defendants motion be denied.
24
DATED: July 20, 2015
25
26
GREENBERG GLUSKER FIELDS

CLAMAN & MACHTINGER LLP
By: /s/ Bertram Fields
BERTRAM FIELDS (SBN 024199)
Attorneys for Plaintiffs Golden Boy
Promotions LLC and Bernard Hopkins
27
28
17896-00617/2411040.1
24


GBP Opposition To Haymon Motion To Stay

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GBP Opposition To Haymon Motion To Stay

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Case 2:15-cv-03378-JFW-MRW Document 27 Filed 07/20/15 Page 1 of 29 Page ID #:192

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GREENBERG GLUSKER FIELDS CLAMAN

BERTRAM FIELDS (SBN 024199)

GOLDEN BOY PROMOTIONS LLC

Case No. CV 15-03378 JFW (MRWx)

PLAINTIFFS POINTS & AUTHS. IN OPPOSITION

Case 2:15-cv-03378-JFW-MRW Document 27 Filed 07/20/15 Page 2 of 29 Page ID #:193

THE TIMING OF RELEVANT EVENTS ..................................................... 2

THE ARBITRATOR DOES NOT HAVE JURISDICTION TO

NOT HAVING AGREED TO ARBITRATION, PLAINTIFFS

EVEN IF PLAINTIFFS HAD BEEN PARTIES TO THE

WHETHER THE CLAIMS IN THIS ACTION HAVE BEEN

GREENBERG GLUSKER FIELDS CLAMAN

Any Release Of Post-Release Violations Would Be Void ....... 15

This Action Is Based Entirely On Post-Release Conduct ........ 15

The Claims Of Non-Parties To The Agreement Were Not

VIII. CONCLUSION ............................................................................................. 24

PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION

Case 2:15-cv-03378-JFW-MRW Document 27 Filed 07/20/15 Page 3 of 29 Page ID #:194

Ajamian v. CantorCO2e, L.P.,

AT&T Technologies, Inc. v. Communications Workers of America,

Carson v. Giant Food Inc.,

Chastain v. Union Sec. Life Ins. Co.,

GREENBERG GLUSKER FIELDS CLAMAN

Columbia Steel Casting Co., Inc. v. Portland General Electric Co.,

DT Apartment Group, LP v. CWCapital LLC,

Fernandes v. Holland Am. Line,

First Options of Chicago, Inc. v. Kaplan,

General American Life Ins. Co. Sales Practices Litig.

Gilbert Street Developers, LLC v. La Quinta Homes, LLC,

Goldman v. Sunbridge Healthcare, LLC,

Howsam v. Dean Witter Reynolds, Inc.,

In re A2P SMS Antitrust Litig.,

Ivax Corp. v. B. Braun of Am., Inc.,

Jones v. Bayer Healthcare LLC,

PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION

Case 2:15-cv-03378-JFW-MRW Document 27 Filed 07/20/15 Page 4 of 29 Page ID #:195

Kristian v. Comcast Corp.,

Lee v. Southern California University for Professional Studies,

McLaughlin Gormley King Co. v. Terminix Intern. Co.,

MCM Partners, Inc. v. Andrews-Bartlett & Associates, Inc.,

Melchior v. New Line Productions, Inc.,

GREENBERG GLUSKER FIELDS CLAMAN

Mitsubishi Motors v. Soler Chrysler-Plymouth,

Oliver v. SD-3C LLC,

Oracle America, Inc. v. Myriad Group A.G.,

R.J. Griffin & Co. v. Beach Club II Homeowners Assn., Inc.,

Riley Mfg. Co. v. Anchor Glass Container Corp.,

Ross v. Metropolitan Life Insurance Co.,

Samsung Elecs. Co. v. Panasonic Corp.,

Smith Barney, Inc. v. Sarver,

Vaden v. Discover Bank,

Virginia Carolina Tools, Inc. v. International Tool Supply, Inc.,

Watson Carpet & Floor Covering, Inc. v. Mohawk Industries, Inc.,

PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION

Case 2:15-cv-03378-JFW-MRW Document 27 Filed 07/20/15 Page 5 of 29 Page ID #:196

Zenith Radio Corp. v. Hazeltine Research, Inc.,

GREENBERG GLUSKER FIELDS CLAMAN

PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION

Case 2:15-cv-03378-JFW-MRW Document 27 Filed 07/20/15 Page 6 of 29 Page ID #:197