gbp opposition to haymon motion to stay

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17896-00617/2411040.1 PLAINTIFFS POINTS & AUTHS. IN OPPOSITION TO DEFENDANTS MOTION TO STAY

BERTRAM FIELDS (SBN 024199) [email protected] RICARDO P. CESTERO (SBN 203230) [email protected] JAMES R. MOLEN (SBN 260269) [email protected] GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Telephone: 310.553.3610 Fax: 310.553.0687

Attorneys for Plaintiffs Golden Boy Promotions LLC and Bernard Hopkins

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

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,

Defendants.

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

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

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TABLE OF CONTENTS

Page

i PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION TO DEFENDANTS' MOTION TO STAY

I. 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

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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TABLE OF AUTHORITIES Page

ii PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION TO DEFENDANTS' MOTION TO STAY

CASES

Ajamian v. CantorCO2e, L.P., 203 Cal.App.4th 771 (2012) ........................................................................ passim

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

Chastain v. Union Sec. Life Ins. Co., 502 F.Supp.2d 1072 (C.D. Cal. 2007) .................................................................. 9

Columbia Steel Casting Co., Inc. v. Portland General Electric Co., 111 F.3d 1427 (9th Cir. 1996) ............................................................................ 20

DT Apartment Group, LP v. CWCapital LLC, 2013 WL 2317061 (N.D. Tex. May 28, 2013) ................................................... 22

Fernandes v. Holland Am. Line, 810 F.Supp.2d 1334 (S.D. Fla. 2011) ................................................................. 15

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 131 L.Ed.2d 985 (1995) ........................................................ 3, 4, 5

General American Life Ins. Co. Sales Practices Litig. 357 F.3d 800 (9th Cir. 2004) .............................................................................. 21

Gilbert Street Developers, LLC v. La Quinta Homes, LLC, 174 Cal.App.4th 1185 (2009) ........................................................................... 3, 6

Goldman v. Sunbridge Healthcare, LLC, 220 Cal.App.4th 1160 (2013) ............................................................................... 8

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) ............................................................................................... 3

In re A2P SMS Antitrust Litig., 972 F.Supp.2d 465 (S.D.N.Y. 2013) ............................................................ 16, 17

Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d 1309 ....................................................................................................... 9

Jones v. Bayer Healthcare LLC, 2008 WL 3539619 (N.D. Cal. 2008) .................................................................. 11


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iii PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION TO DEFENDANTS' MOTION TO STAY

Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006) ................................................................................ 15

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

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

Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 87 L.Ed.2d 444 (1985) ................................................................ 16

Oliver v. SD-3C LLC, 751 F.3d 1081 (9th Cir. 2014) ............................................................................ 20

Oracle America, Inc. v. Myriad Group A.G., 724 F.3d 1069 (9th Cir. 2013) .............................................................................. 7

R.J. Griffin & Co. v. Beach Club II Homeowners Assn., Inc., 384 F.3d 157 (4th Cir. 2004) ........................................................................ 10, 11

Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d 775 (10th Cir. 1998) .............................................................................. 5

Ross v. Metropolitan Life Insurance Co., 411 F.Supp.2d 571 (W.D. Pa. 2006) .................................................................. 21

Samsung Elecs. Co. v. Panasonic Corp., 747 F.3d 1199 (9th Cir. 2014) ............................................................................ 20

Smith Barney, Inc. v. Sarver, 108 F.3d 92 (1997) ............................................................................................... 4

Smith v. Smith, 2014 WL 5462023 (D. Or. 2014) ....................................................................... 11

Vaden v. Discover Bank, 173 L.Ed.2d 206 (2009) ........................................................................................ 4

Virginia Carolina Tools, Inc. v. International Tool Supply, Inc., 984 F.2d 113 (4th Cir. 1993) ................................................................................ 5

Watson Carpet & Floor Covering, Inc. v. Mohawk Industries, Inc., 648 F.3d 452 (6th Cir. 2011) ........................................................................ 20, 21


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iv PLAINTIFFS' POINTS & AUTHS. IN OPPOSITION TO DEFENDANTS' MOTION TO STAY

Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 28 L.Ed.2d 77 (1971) ............................................................ 20, 21

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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17896-00617/2411040.1 1 PLAINTIFFS POINTS & AUTHS. IN OPPOSITION TO DEFENDANTS MOTION TO STAY

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.

For a number of reasons, the stay should be denied. The arbitrator does not

have jurisdiction to decide these issues; and the issue of his jurisdiction is to be

decided by the court, not by the arbitrator, himself. With a narrowly defined

exception, not applicable here, an arbitrator has no jurisdiction to decide the extent

of his own jurisdiction. Multiple state and federal cases hold that it is for a court,

not the arbitrator, to decide such jurisdictional issues as whether litigants who were

not parties to the arbitration agreement can be compelled to arbitrate anything, and,

if so, whether the dispute is even one that is even arbitrable under that agreement.

Those jurisdictional issues, in themselves, call for denial of the stay. Even if

they had been parties to that contract (and they were not), the antitrust and related

claims in this action are patently outside the scope of its arbitration clause, which

limits arbitration to claims arising out of or related to the contract itself.

And, even aside from the jurisdictional claims, there is no basis for the

release asserted by defendants. Since plaintiffs were not parties to the contract,

their claims were not released. And, even if they had signed the contract, its release

was expressly limited to claims from the beginning of the world to December 18,

2014, any purported release of Sherman Act violations after the release would have

been void as contrary to public policy, and the complaint expressly limits the

violations sued upon to those occurring after January 1, 2015. There is no basis for


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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. THE TIMING OF RELEVANT EVENTS. On December 18, 2014, defendants and others not parties to this action

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 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,

defendants filed a demand for arbitration. At that point, they did not make

plaintiffs parties to the arbitration.

On May 5, 2015, this action was filed by Golden Boy Promotions LLC

(Promotions), a licensed boxing promoter, and Bernard Hopkins (Hopkins), a

championship boxer. They alleged inter alia, multiple violations by defendants of

Sections 1 and 2 of the Sherman Act committed after January 1, 2015. They sought

an injunction and damages. The complaint was served on the Haymon defendants

and defendant Ryan Caldwell on May 7,2015.

On June 11, 2015, defendants amended their demand for arbitration to add

plaintiffs as parties.

On July 1, 2015, Top Rank, Inc., another boxing promoter, filed action

number CV15-04961 JFW (MRWx) against the defendants in this action (the Top

Rank Case). The allegations of Top Ranks complaint closely resembled the

allegations of the complaint in this action. It alleged the same forms of misconduct

alleged by plaintiffs and sought essentially the same relief under Sections 1 and 2 of

the Sherman Act. Plaintiffs in the Top Rank case filed and served on defendants a

notice that it was a related case to this action.

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.


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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

himself. The general rule is that the arbitrability of a claim and thus the

jurisdiction of the arbitrator to decide that claim is a question for the courts, not

the arbitrator himself. See, e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S.

79, 83 (2002).

There is a very narrow exception to that rule. Numerous federal and

California cases hold that an arbitrator has no power to determine the arbitrability

of a claim unless the parties agreement clearly and unmistakably grants the

arbitrator that power. AT&T Technologies, Inc. v. Communications Workers of

America, 475 U.S. 643, 649, 89 L.Ed.2d 648, 649 (1986); First Options of Chicago,

Inc. v. Kaplan, 514 U.S. 938, 944, 131 L.Ed.2d 985, 994 (1995); Ajamian v.

CantorCO2e, L.P., 203 Cal.App.4th 771, 789-90 (2012); Gilbert Street Developers,

LLC v. La Quinta Homes, LLC, 174 Cal.App.4th 1185, 1195 (2009).

The usual presumption in favor of arbitration does not apply to the issue of

whether the arbitrator can determine his own jurisdiction. On that issue, the

presumption is reversed; and ambiguity as to who decides the issue of arbitrability

is to be resolved in favor of decision by the courts. First Options, supra, 514 U.S. at

944-5, 131 L.Ed.2d at 994. McLaughlin Gormley King Co. v. Terminix Intern.

Co., 105 F.3d 1192, 1194 (8th Cir. 1997).


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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

The clear and unmistakable test imposes a heightened standard, higher

than the evidentiary standard applicable to other matters of interpreting an

arbitration agreement. This is because . . . the law is solicitous of the parties

actually focusing on the issue. Ajamian, supra, 203 Cal.App.4th 790-91, citing

First Option, supra, 514 U.S. at 945, 131 L.Ed.2d at 994 (emphasis in opinion).

Even aside from the fact that plaintiffs were not parties to the Contract, it

contains no statement granting the arbitrator the power to decide his own

jurisdiction, much less a clear and unmistakable statement conferring that highly

significant power. Plainly, jurisdiction to decide jurisdiction was not an issue on

which the parties were focused.

Defendants refer to general language in the Contract that the arbitrator has

jurisdiction over Any and all disputes arising out of, relating to or regarding this

Agreement including but not limited to its implementation, interpretation, validity

and enforcement.

1 Smith Barney was abrogated on other grounds Vaden v. Discover Bank, 173 L.Ed.2d 206 (2009). 2 Historical note: First Options was successfully argued by Chief Justice John Roberts. 131 L.Ed.2d at 989.


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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

controversies arising under this agreement and all matters arising in connection

with this agreement is not clear and unmistakable agreement allowing arbitrator

to determine his own jurisdiction].

Even the broadest possible arbitration clause, requiring arbitration by the

American Arbitration Association of any dispute between the parties, does not

constitute sufficient focus on the arbitrator deciding his own jurisdiction to satisfy

the clear and unmistakable test. Virginia Carolina Tools, Inc. v. International

Tool Supply, Inc., 984 F.2d 113, 115, 117 (4th Cir. 1993). While any dispute

might arguably be construed to include a dispute over the arbitrators own

jurisdiction, those words were not deemed sufficiently focused to empower the

arbitrator to decide such issues.

By definition, a provision that is ambiguous cannot be clear and

unmistakable. Thus ambiguity, like a lack of focus on the jurisdictional issue,

will prevent an arbitration clause from meeting the clear and unmistakable test

and permitting the arbitrator to decide his own jurisdiction. First Options, supra,

514 U.S. at 945, 131 L.Ed.2d at 994; Riley Mfg. Co., supra, 157 F.3d at 781.

None of the words in the general arbitration clause here clearly and

unmistakably grant the arbitrator power to decide on his own jurisdiction or show

that the parties focused on the issue. None of those words, such as relating


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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.

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

ambiguity. 175 F.3d at, 330-1. That is certainly true here. The parties were

represented by experienced counsel. They took the time to specify that the

arbitrator could decide such things as whether and how discovery will be

conducted, whether and how evidence will be presented, the nature of any briefing

and argument and the venue of any such proceeding (Contract par. 6.1). They

could easily have stated clearly and unmistakably that the arbitrator has the

power to decide the arbitrability of issues or the extent of his own jurisdiction,

or similar specific words showing the parties focus on that important issue. They

did not, and neither their general language nor any of their specific examples can

satisfy the clear and unmistakable test of the cases.

As a backup argument, defendants represent that the entire body of the JAMS

arbitration rules were incorporated by reference in the Contract and that Rule 8(b)

of those rules would permit the arbitrator to decide issues of arbitrability. They

argue, therefore, that the requirement of a clear and unmistakable grant of

jurisdiction to determine jurisdiction has been satisfied.

There has been a split of authority on whether incorporating by reference an

entire body of arbitration rules, shows a sufficient focus by the parties on giving

the arbitrator the power to determine his own jurisdiction to satisfy the clear and

unmistakable test. See Ajamian, supra, 203 Cal.App.4th at 789-91; Gilbert Street,


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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).

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

would only be determined by the JAMS rules in the absence of any decision by

Judge Weinstein (emphasis added).

One thing is clear from this somewhat ambiguous language. Judge

Weinstein is not bound by the JAMS rules, even if the provision allows him to

select some, all or none of them. The fact that the JAMS rules are not incorporated

by reference here is made even more clear by contrasting the provision governing

Judge Weinsteins arbitrations with that governing arbitrations conducted by

Lizbeth Hasse. Paragraph 6.1 provides that, if the arbitration is before Ms. Hasse,

she shall conduct the arbitration pursuant to the JAMS Streamlined Arbitration

Rules and procedures. That is an incorporation by reference. There is no similar

requirement that Judge Weinstein shall conduct the arbitration pursuant to the

JAMS rules. On the contrary, he need not apply any of those rules. Contrary to

defendants representation, the parties have not incorporated by reference the entire

body of JAMS rules or any particular rule in that body of rules; and the contract

language certainly does not constitute a clear and unmistakable agreement of the

parties to cede to the arbitrator the power to rule on his own jurisdiction.

In Ajamian, for example, the court held that a contract granting the party

demanding arbitration the right to select the applicable rules is not a clear and

unmistakable agreement empowering the arbitrator to decide jurisdictional issues,


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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.

IV. NOT HAVING AGREED TO ARBITRATION, PLAINTIFFS CANNOT BE COMPELLED TO ARBITRATE ANYTHING.

The first jurisdictional issue for the court is whether parties who have not

agreed to arbitrate can be compelled to. The answer is no. As the Supreme Court

put it, Arbitration is a matter of contract and a party cannot be required to submit

to arbitration any dispute which he has not agreed so to submit. AT&T

Technologies, supra, 475 U.S. 643, 649, 89 L.Ed.2d 648, 656 (1986).

California law is the same. [t]he strong public policy in favor of arbitration

does not extend to those who are not parties to an arbitration agreement, and a party

cannot be compelled to arbitrate a dispute that he [or she] has not agreed to resolve

by arbitration. Goldman v. Sunbridge Healthcare, LLC, 220 Cal.App.4th 1160,

1178 (2013) quoting Lee v. Southern California University for Professional Studies,

148 Cal.App.4th 782, 786 (2007); Benasra v. Marciano, 92 Cal.App.4th 987, 990

(2001).

Hopkins and Promotions are the sole plaintiffs in this action. While they do

have relationships with parties to the Contract, neither was a party to that Contract,

and neither has agreed to arbitrate anything. Accordingly, plaintiffs cannot be

compelled to arbitrate, and the arbitrator has no jurisdiction to decide any of the

issues for which defendants seek a stay.


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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.

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

without merit. Defendants appear to have searched for all cases using the phrase

artful pleading. But the cases they cite are manifestly inapposite. Defendants

quote dicta from two cases to the effect that a party to an arbitration contract cannot

simply add a non-party defendant as a device to avoid arbitration. In both cited

cases, the courts held this principle inapplicable. See Ivax Corp. v. B. Braun of

Am., Inc., 286 F.3d 1309, 1318 (11th Cir. 2002 [D. Pts. & A. p. 8]; Chastain v.

Union Sec. Life Ins. Co., 502 F.Supp.2d 1072, 1081 (C.D. Cal. 2007) [D. Pts. & A.

p. 9].

But, in our case, no party to an arbitration contract has added a non-party

defendant or plaintiff in order to avoid arbitration. There are only two plaintiffs and

neither was a party to the arbitration agreement. Both have claims against

defendants. No one has been added to defeat arbitration.

Stretching to come within the dicta in the inapposite cases they cite,

defendants make an unsupported (and untrue) factual claim. They assert that

respondents named Promotions and Hopkins as the plaintiffs in the federal action

because they were not parties to the Contract (Ds Ps. & A. pp. 1-2, 8-9). They

provide no evidentiary support for that assertion, and it is demonstrably untrue.

Promotions was chosen because it is a licensed boxing promoter and thus the

proper plaintiff for this antitrust action. Hopkins was chosen because he is a


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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.

In California, the extent to which a non-party can become obligated by

accepting the benefits of a contract is set out in Civil Code Section 1589, which

provides that A voluntary acceptance of the benefit of a transaction is equivalent to

a consent to all the obligations arising from it, so far as the facts are known, or

ought to be known, to the person accepting. See, e.g., Melchior v. New Line

Productions, Inc., 106 Cal.App.4th 779, 788-90 (2003). A person named as a third

party beneficiary of a contract is not bound by its obligations, unless his voluntary

acceptance of the contractual benefits is shown. There is no such showing here.

Neither Hopkins nor Promotions has claimed to be released from anything or has

sought or accepted any other benefit under the contract.

Defendants quote part of a sentence from dicta in R.J. Griffin & Co. v. Beach

Club II Homeowners Assn., Inc., 384 F.3d 157, 164 (4th Cir. 2004) [D. Pts. & A.

p. 8], that a party may not use artful pleading to avoid arbitration. The omitted

balance of the sentence is when in substance . . . [it] is attempting to hold [a party]

to the terms of an agreement [ellipsis and brackets in opinion]. In other words, if a

party takes action to enforce an agreement containing an arbitration clause, he may

have to arbitrate. The R.J. Griffin court denied the motion to compel arbitration

3 Hopkins owns a minority interest in an LLC that is a party to the agreement.


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

no action to enforce the Contract.

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.

As a backup to their artful pleading and direct benefit arguments,

defendants point to paragraph 8.6 of the Contract, which provides that its terms are

binding on successors, assigns, administrators, executors, stockholders

etc. But the cited provision simply means that the listed types of non-parties are

bound by the provision requiring that the claims of the contracting parties be

arbitrated. It does not mean that, in addition, all claims that happen to be owned by

all successors, assigns, executors, employees, etc. have also become

arbitrable.

For example, if Oscar De La Hoya, a party to the contract, assigns a claim

against a Haymon entity to CBS, paragraph 8.6 requires CBS, as the assignee, to

arbitrate De La Hoyas claims against the Haymon entity. But that does not mean

that, if CBS has its own claims against the Haymon entity, CBS will now be

compelled to arbitrate those claims, because it has become an assignee of a claim

from De La Hoya.

And if De La Hoya were to die and the Bank of America became his

executor or administrator, paragraph 8.6 would require the Bank to arbitrate De

La Hoyas claims against the Haymon entity. But, if the Bank had its own claim on

a promissory note against the Haymon entity, the Bank would certainly not be

obligated to arbitrate that claim.


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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.

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

that those words bind some listed non-parties, such as heirs, executors,

administrators and assigns only to arbitration of the claims of parties to the

Contract, but that the same words in the same sentence bind other non-parties in the

same list, such as stockholders and employees to the arbitration not only of the

parties claims, but, in addition, compel arbitration of the stockholders and

employees own claims. Defendants argument, giving the same words in the

same sentence a different meaning, depending on which of the non-parties in the

same list is involved, defies logic and ordinary principles of contract interpretation.

V. EVEN IF PLAINTIFFS HAD BEEN PARTIES TO THE CONTRACT, THE CLAIMS IN THIS ACTION ARE NOT WITHIN ITS

ARBITRATION CLAUSE.

The next jurisdictional question for decision by the court is whether the

claims in this action come within the scope of the arbitration clause. They do not.

Even if plaintiffs had signed the Contract, the arbitrator could only have

jurisdiction if the disputed claims fall within the scope of its arbitration clause. The

arbitration clause is in paragraph 6.1 of the Contract. It provides that the claims to

be arbitrated are disputes arising out of, relating to, or regarding this

Agreement (emphasis added). The provision then gives examples of such

contract-based disputes.


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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.

The federal claims present numerous antitrust issues, such as the definitions

of the relevant product market and of the relevant geographic market, the existence

of barriers to entry, elasticity or inelasticity of demand, the definition and degree of

market domination, the use of dominant power in one market to achieve monopoly

power in another market, the doctrines of tying in and tying out, locking in

and locking out, the existence of antitrust damages and many other such issues

none of which have anything to do with the Contract and all of which require

extensive discovery and expert testimony.

And other parts of the Contract show that such claims were never intended to

be the subjects of arbitration. For example, if plaintiffs were compelled to arbitrate

their antitrust claims, paragraph 6.1 of the Contract would bar them from obtaining

and examining any financial records of the principal defendants. That would make

it virtually impossible to pursue the antitrust claims, and the existence of that

provision strongly supports the conclusion that the arbitration clause was intended

to cover straightforward claims arising from the contract itself, such as claims

asserting a breach of the Contract, but not complex economic and financial issues


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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

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.

Defendants have also argued that, because paragraph 3 of the Contract deals

with inducing boxers not to contract with Golden Boy, this makes all of the claims

in this action arbitrable as being related to the Contract. Among the fatal defects in

that argument is the fact that the provisions of paragraph 3 were in effect only

during the Term; and the Haymon Defendants elected to end the Term on

January 8, 2015, only 3 weeks after the Contract was signed. And, even if

paragraph 3 were still in force, its very limited provisions wouldnt come close to

making all the antitrust and related claims in this action arbitrable.

Finally, defendants have asserted that paragraph 7 of the Contract deals with

potential violations of the Muhammad Ali Boxing Reform Act, 15 U.S.C. 6300 et

seq. (the Ali Act), so that a claim of such violations is arbitrable. But this too is

incorrect. Paragraph 7 simply contains warranties that, as of December 18, 2014,

there have been no past violations of the Ali Act and provides for arbitration if such

past violations are claimed. Nothing in the paragraph deals with potential future

4 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.


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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

arbitrator.

VII. THE CLAIMS IN THIS ACTION HAVE NOT BEEN RELEASED. Defendants argue that every one of plaintiffs claims in this action have been

released based on paragraph 4.3 of the Contract. There are at least three separate

and independent answers to that case dispositive argument.

1. Any Release Of Post-Release Violations Would Be Void. Defendants argue that the release provision of the Contract, which released conduct

only through December 18, 2014, also releases the same type of conduct thereafter.

Not only is there no basis for such a construction of the provision, that construction,

purporting to release subsequent violations of the Sherman Act, would be void as

contrary to public policy. No agreement to waive, release or forgive future

violations is valid or enforceable. See Mitsubishi Motors v. Soler Chrysler-

Plymouth, 473 U.S. 614, 637 n.19, 87 L.Ed.2d 444, 462 n.19 (1985), (collecting

cases); Kristian v. Comcast Corp., 446 F.3d 25, 47-8 (1st Cir. 2006); Fernandes v.

Holland Am. Line, 810 F.Supp.2d 1334, 1338 (S.D. Fla. 2011).

2. This Action Is Based Entirely On Post-Release Conduct. The Contract releases only claims from the beginning of time through the date

of the execution of this Agreement, i.e. through December 18, 2014 (Agreement,

par. 4.3 p. 10).


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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

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

would have been void, plaintiffs took a belt and suspenders approach and

explicitly limited their claims to post-release conduct, seeking to avoid any

argument that the claims on which this action is based have been released.

Defendants cite In re A2P SMS Antitrust Litig., 972 F.Supp.2d 465, 495

(S.D.N.Y. 2013) [D. Pts. & A. p. 9]. A2P is about an arbitration provision, not a

release; and, as discussed, future violations cannot be validly released, even if

future disputes can be arbitrated. But even if A2Ps holding were extended to

releases, it would still not aid defendants. The case holds that, if the acts on which

the plaintiff sues occur during the period covered by the arbitration agreement, the

plaintiff cannot avoid arbitration by agreeing to limit his damages to those

occurring beyond the period covered by the arbitration clause.

Thus, the A2P court held that even though the plaintiff was willing to forego

damages incurred during the period covered by of the arbitration clause, plaintiffs

theory of liability extends the temporal scope of the allegations such that their

claims do fall within the scope of the [arbitration clause]. The court adds that,

because the factual basis for the claims asserted in the complaint clearly falls

within the scope of the broad arbitration clause in [the agreement], plaintiffs


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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).

That is not the situation here. Plaintiffs are not merely offering to reduce

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.

Sometime, defendants argue that plaintiffs entire case is based on

defendants pre-release conduct. That is simply wrong. Plaintiff is suing for

multiple instances of unlawful conduct after January 1, 2015, including, for

example, repeated violations of the Ali Act during 2015, such as promoting

numerous arena bouts during 2015 while acting as a manager, or repeatedly

promoting bouts on network television in 2015 while acting as a manager, or acting

during 2015 to exclude plaintiffs from network television deals or from booking

major arenas. If there were such acts prior to December 28, 2014, they are not sued

upon; and they certainly do not (and legally could not) prevent plaintiffs suing for

such violations after January 1, 2015.

At other points, defendants argue that the same kind of acts on which

plaintiffs are suing occurred before December 28, 2014 and that this precludes

plaintiffs suing for the same kind of acts committed after January 1, 2015. That

argument too is unavailing. If defendants trespass on plaintiffs land in 2014, and

the parties settle and execute a release for all conduct prior to December 18, 2014,

and, then, after January 1, 2015 defendant trespasses on plaintiffs land again,

plaintiff is certainly not barred by the earlier release from suing defendant and

limiting his claims to the 2015 trespass. Defendants would argue that this limit

should be disregarded as artful pleading; but that is not the law.

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


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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.

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

monopoly in a different business, that of promoting boxing matches. That attempt

to obtain a new monopoly in the promotion business, not Haymons preexisting

dominance in the management business, is one of the grounds for plaintiffs

recovery under the Sherman Act.

That preexisting power in the management business is simply a means of

attempting to monopolize the promotion business in violation of the Act. But,

plaintiffs are suing on the attempt to create a new monopoly in promoting fights,

not on defendants preexisting control of managing boxers. In any event, plaintiffs

alternate claim under Section 2 of the Sherman Act is that defendants are also

attempting to create the promotional monopoly by illegal post-release acts, such as

their numerous violations of the Ali Act and repeated instances of exclusionary

conduct during 2015.

Defendants stress that they had an agreement with Waddell & Reed and with

two networks before January 1, 2015. That would hardly defeat plaintiffs claims,

even if those earlier agreements contained violations of the law. Other unlawful

network agreements were made in 2015, and there were many more acts by

defendants to exclude plaintiffs from dealing with networks and booking arenas that

were violations of the law, as well as violations of the Ali Act, all of which clearly

occurred after January 1, 2015. Moreover, we have no competent evidence of what


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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.

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

as releasing claims based on post-release conduct, it would be void as contrary to

public policy. Defendants argue that post-release acts in furtherance of a pre-

release conspiracy are not separate violations. They are not correct. In any event,

as the complaint shows, plaintiffs are not relying on pre-release conspiracies carried

out by post-release acts. And, if they were, defendants contention would still be

incorrect. Defendants moving papers cite no cases that support this argument.

They have previously referred to the cases on which they rely, and plaintiffs

anticipate that they have held such cases for use in their reply. For example,

although it is not cited in their moving papers, defendants have previously placed

their principal reliance on MCM Partners, Inc. v. Andrews-Bartlett & Associates,

Inc., 161 F.3d 443 (7th Cir. 1998). In MCM Partners, the plaintiff released his

claim that defendants had entered into a pre-release conspiracy to prevent certain

defendants doing business with plaintiff in violation of the Sherman Act. Later,

plaintiff sued claiming that a defendant was refusing to do business with him. The

court held that the release barred the earlier conspiracy, that there was no post-

release combination or conspiracy and that the post-release conduct was simply

a unilateral refusal to deal, which the court held is non-actionable. Thus, the

court held [the plaintiffs] claims based on pre-release conspiracy are barred, and

[the plaintiff] fails to present any evidence of post-release violations. (id. at 449).


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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.

But even if the federal action had alleged only a single pre-release conspiracy

and the post-release acts were all committed pursuant to that same conspiracy,

defendants argument would still be incorrect and inapplicable. Each act pursuant

to an illegal conspiracy is a separate violation of the Sherman Act. Because of that

rule, for example, plaintiff may recover for acts pursuant to a continuing conspiracy

even if committed after the statute of limitations has run on the conspiracy itself.

Because each such act is a new and separate violation, a new statutory period

begins to run each time an act pursuant to the conspiracy is committed. Zenith

Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 28 L.Ed.2d 77, 92

(1971); Oliver v. SD-3C LLC, 751 F.3d 1081, 1085 (9th Cir. 2014); Samsung

Elecs. Co. v. Panasonic Corp., 747 F.3d 1199, 1202-3 (9th Cir. 2014); Columbia

Steel Casting Co., Inc. v. Portland General Electric Co., 111 F.3d 1427, 1444-5 (9th

Cir. 1996).

Because of the rule that each act to carry out a pre-existing conspiracy is a

new and separate violation of the antitrust laws, the release of a prior conspiracy

does not (indeed, it cannot) release post-release conduct pursuant to that conspiracy.

The court dealt squarely with this issue in Watson Carpet & Floor Covering, Inc. v.

Mohawk Industries, Inc., 648 F.3d 452, 454, 461 (6th Cir. 2011). The complaint

there alleged a single pre-release conspiracy and post-release acts pursuant to that


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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.

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

distinguishable. Plaintiffs here are not suing on any pre-release conspiracy. They

allege new combinations and conspiracies after the release, plus numerous

individual acts in 2015 violating the Ali Act and the Sherman Act and independent

of any pre-existing conspiracy, as well as a current and ongoing attempt to create a

new monopoly in the business of promoting fights by post-release violations of the

law.

The other cases on which defendants have previously relied are also

unavailing. In Ross v. Metropolitan Life Insurance Co., 411 F.Supp.2d 571 (W.D.

Pa. 2006), plaintiffs claimed fraud, breach of fiduciary duty and other misconduct

in concealing that the insurance policies they were issuing to plaintiffs were more

costly and provided lower dividends than plaintiffs believed. After the policies

were issued and some higher premiums paid, the parties reached a settlement and

signed a release. Although some of the damages (such as paying higher premiums)

were incurred after, as well as before the release, the court held that the wrongful

conduct itself occurred when the polices were issued, which was well before the

release. In our case, the federal action alleges numerous instances of unlawful

conduct after the release not merely that post release damages were incurred from

unlawful conduct before the release.

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


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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.

The allegations in our case are not just that plaintiffs incurred damages after

the release from a wrongful act committed before the release. The complaint

alleges numerous instances of wrongful conduct and even new combinations and

conspiracies in violation of the Sherman Act , all of which occurred in 2015 after

the release. Since the acts on which plaintiffs base their claims in this action are

expressly limited to conduct after January 1, 2015, those post-settlement claims

have not been released.

3. The Claims Of Non-Parties To The Agreement Were Not Released. Although it is unnecessary, there is a second and independent reason

why the claims in this action were not released by the Contract. Since neither

plaintiff was a party to the Contract containing the release provision, that Contract

did not release their claims.

As in the case of the arbitration provision, defendants rely on paragraph 8.6

of the contract, which provides that the agreement shall be binding upon the

parties successors, assigns, administrators, executors, stockholders, affiliates, etc.

Just as they contend that this paragraph expands what is arbitrable to claims owned

by any successors, assigns, administrators, stockholders, etc., they argue that

paragraph 8.6 expands the scope of the releases under paragraph 4, so that not only

are the listed non-parties bound to honor the release of the parties claims, but, in


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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

seek to make binding on successors, assigns, executors, affiliates, etc., not claims

owned by such non-parties themselves.5

The same hypotheticals that show the limit of the arbitration clause also show

the limit of the release provision. If Oscar De La Hoya assigned a claim against

defendant Haymon Sports to CBS, paragraph 8.6 would prevent CBS, as an

assign, from enforcing De La Hoyas claim against Haymon Sports, because, as a

party to the Contract, De La Hoya released his claims. But, paragraph 8.6 does not

mean that the scope of the release itself is expanded, so that, if CBS happens to

have its own claims against Haymon Sports, those claims are now released, because

CBS received an assignment of De La Hoyas claim.

And, if De La Hoya died and the Bank of America became the executor or

administrator of his estate, paragraph 8.6 would prevent the Bank from enforcing

De La Hoyas claims against Haymon Sports, but the Banks own claim against

Haymon Sports on a promissory note would certainly not be released by

paragraph 8.6.

5 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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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

the release itself has been altered and expanded to wipe out Hopkins own claims

against Haymon, even though Hopkins was not even a party to the Contract.

But, again, because, in this action, plaintiffs have sued only for conduct

occurring after January 1, 2015, their claims have not been released, and there is no

need for the arbitrator even to reach the effect of paragraph 8.6 on the claims of

persons or entities that were not even parties to the agreement.

VIII. CONCLUSION. Having attempted to keep this action separate from the Top Rank Case by

representing to the court that they are unrelated, defendants continue their effort

to litigate the cases separately by moving to stay this action so that, contrary to

federal and state law, an arbitrator can determine his own jurisdiction and compel

non-parties to the arbitration agreement to arbitrate their antitrust and related claims

that are far outside the scope of the arbitration agreement. Based on the foregoing,

it is respectfully requested that defendants motion be denied. DATED: July 20, 2015

GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP By: /s/ Bertram Fields

BERTRAM FIELDS (SBN 024199) Attorneys for Plaintiffs Golden Boy Promotions LLC and Bernard Hopkins


I. INTRODUCTIONII. THE TIMING OF RELEVANT EVENTS.III. THE ARBITRATOR DOES NOT HAVE JURISDICTION TO DETERMINE HIS OWN JURISDICTION.IV. NOT HAVING AGREED TO ARBITRATION, PLAINTIFFS CANNOT BE COMPELLED TO ARBITRATE ANYTHING.V. EVEN IF PLAINTIFFS HAD BEEN PARTIES TO THE CONTRACT, THE CLAIMS IN THIS ACTION ARE NOT WITHIN ITS ARBITRATION CLAUSE.VI. WHETHER THE CLAIMS IN THIS ACTION HAVE BEEN RELEASED IS NOT ARBITRABLE.VII. THE CLAIMS IN THIS ACTION HAVE NOT BEEN RELEASED.1. Any Release Of Post-Release Violations Would Be Void. Defendants argue that the release provision of the Contract, which released conduct only through December 18, 2014, also releases the same type of conduct thereafter. Not only is there no basi...2. This Action Is Based Entirely On Post-Release Conduct. The Contract releases only claims from the beginning of time through the date of the execution of this Agreement, i.e. through December 18, 2014 (Agreement, par. 4.3 p. 10).3. The Claims Of Non-Parties To The Agreement Were Not Released. Although it is unnecessary, there is a second and independent reason why the claims in this action were not released by the Contract. Since neither plaintiff was a party to the Contrac...

VIII. CONCLUSION.

gbp opposition to haymon motion to stay

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