zuffa's opposition.pdf

8/11/2019 Zuffa's Opposition.PDF

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Jon Jones, Gina Carano, Frankie Edgar, MattHamill, Brian Stann, Zuffa, LLC d/b/a Ultimate

Fighting Championship, Don Lilly, Shannon

Miller, Danielle Hobeika, Beth Hurrle, Donna

Hurrle, Steve Kardian, Joseph Lozito, ErikOwings, Chris Reitz, and Jennifer Santiago,

Plaintiffs,

-against-

Eric T. Schneiderman, in his official capacity asAttorney General of the State of New York,

Dennis Rosen, in his official capacity asCommissioner and Chairman of the New YorkState Liquor Authority, and Jeanique Green, in

her official capacity Commissioner of the New

York State Liquor Authority,

Defendants.

No. 11 Civ. 8215 (KMW)(GWG)

PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT

MORRISON & FOERSTER LLP

Jamie A. Levitt

Jonathan C. Rothberg

250 West 55th StreetNew York, New York 10019-9601

Phone: 212.468.8000

[email protected]

[email protected]

Attorneys for Plaintiffs

Barry Friedman

40 Washington Square South

Room 317New York, New York 10014-1005

Phone: 212.998.6293

[email protected]

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Case 1:11-cv-08215-KMW-GWG Document 109 Filed 08/21/14 Page 1 of 31


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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .................................................................................................... 1

I. Plaintiffs Have Standing To Raise Their Constitutional Challenges to 8905-a ................ 3

A.

As the Direct Objects of 8905-a, Plaintiffs Have Standing .................................. 3

B. Zuffa Has An Injury from 8905-a That is Redressable by the Court .................... 4

C. Lilly and Miller Have Standing to Challenge 8905-a as to Amateur MMA ........ 8

D. The Stipulating Plaintiffs Have Standing And Should Not Be Dismissed ........... 10

II. Section 8905-a is Vague as to Professional MMA ........................................................... 11

A. Resort to Legislative History Is Inappropriate Here Under the Notice Prong, and

In Any Event It Does Not Support the AGs Case ............................................... 12

1. The Plain Text of 8905-a Permits Exempt Organizations to Sanction

Professional MMA .................................................................................... 13

2. The Legislative History Does Not Support The AGs Position; MMAToday Is Not The Ultimate Fighting The Legislature Banned ................. 15

B. Section 8905-a Fails the Enforcement Prong Because the State Has TakenInconsistent and Arbitrary Enforcement Actions ................................................. 18

III. The States Enforcement Renders 8905-a Vague as to Amateur MMA ......................... 20

IV.

Plaintiffs Have Standing as to the Vague 2001 Liquor Law ............................................ 22

A. Plaintiffs Have Standing to Challenge The 2001 Liquor Law .............................. 22

B. The 2001 Liquor Law is Unconstitutionally Vague ............................................. 23

V. Section 8905-a is vague as to MMA on Indian Reservations and Plaintiffs Have Standing

to Challenge it ................................................................................................................... 23

VI. This is Not An Appropriate Case For Abstention ............................................................. 24

CONCLUSION ............................................................................................................................. 25

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TABLE OF AUTHORITIES

Page

CASES

Aiello v. Town of Brookhaven,

136 F. Supp. 2d 81 (E.D.N.Y. 2001) .......................................................................................11

Allstate Ins. Co. v. Serio,No. 97 CIV. 0670 (RCC), 2000 WL 554221 (S.D.N.Y. May 5, 2000) .....................................9

Am. Booksellers Found. v. Dean,342 F.3d 96 (2d Cir. 2003).....................................................................................................8,9

Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ...................................................................................................................7

ASARCO, Inc. v. Kadish,490 U.S. 605 (1989) ...............................................................................................................3,7

Babbitt v. United Farm Workers,442 U.S. 289 (1979) .................................................................................................................11

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ...................................................................................................................23

Battle v. City of N.Y.,No. 11 Civ. 3599 (RMB), 2012 U.S. Dist. LEXIS 5256 (S.D.N.Y. Jan. 13, 2012) ..................3

Blackwelder v. Safnauer,689 F. Supp. 106 (N.D.N.Y. 1988) ..........................................................................................19

Bryant v. N.Y. State Educ. Dept.,692 F.3d 202 (2d Cir. 2012).......................................................................................................7

Chatin v. Coombe,

186 F.3d 82 (2d Cir. 1999)...........................................................................................13, 19,20

Clapper v. Amnesty Intl USA,__ U.S. __, 133 S. Ct. 1138 (2013) ............................................................................................3

Cunney v. Bd. of Trustees,

660 F.3d 612 (2d Cir. 2011).................................................................................................2,20

DeSimone v. Bd. of Educ., S. Huntington Union Free Sch. Dist.,

612 F. Supp. 1568 (E.D.N.Y. 1985) ........................................................................................25

Fleuti v. Rosenberg,

302 F.2d 652 (9th Cir. 1962), vacd on other grounds, 374 U.S. 449 (1963) .........................13

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Friends of Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,

528 U.S. 167 (2000) ...................................................................................................................3

Fulani v. League of Women Voters,

882 F.2d 621 (2d Cir. 1989)...................................................................................................3,7

Ghirardelli v. McAvey Sales & Serv., Inc.287 F. Supp. 2d 379 (S.D.N.Y. 2003), affd, 98 Fed. Appx. 909 (2d Cir. 2004) ....................17

Hayes v. N.Y. Atty Grievance Comm.,

672 F.3d 158 (2d Cir. 2012).........................................................................................14-15,19

Hill v. Colorado,

530 U.S. 703 (2000) .................................................................................................2,11-12, 18

Kolender v. Lawson,

461 U.S 352 (1983) ....................................................................................................................2

LSO Ltd. v. Stroh,

205 F.3d 1146 (9th Cir. 2000) ...........................................................................................22, 23

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992) ...............................................................................................................1,3

Mansanto Co. v. Geertson Seed Farms,561 U.S. 139 (2010) ...................................................................................................................3

Metro. Taxicab Bd. of Trade v. City of N.Y.,

No. 08 Civ. 7837 (PAC), 2008 U.S. Dist. LEXIS 94021 (S.D.N.Y. Oct. 31, 2008),

affd, 615 F.3d 152 (2d Cir. 2010) .............................................................................. 3-4,10-11

Moore v. Philips,

No. 04 Civ. 8908(DLC), 2006 WL 1006538 (S.D.N.Y. Apr. 18, 2006) .................................11

N.Y. Pub. Interest Research Grp. v. Vill. of Roslyn Estates,498 F. Supp. 922 (E.D.N.Y. 1979) ............................................................................................6

N.Y. State Bankers Assn v. Albright,38 N.Y.2d 430, 381 N.Y.S.2d 17 (1975) .................................................................................25

R.R. Commn of Texas v. Pullman Co.,312 U.S. 496 (1941) .................................................................................................................24

Steffel v. Thompson,415 U.S. 452 (1972) ...................................................................................................................5

Summers v. Earth Isl. Inst.,555 U.S. 488 (2009) ...................................................................................................................3

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Tunick v. Safir,

209 F.3d 67 (2d Cir. 2000).......................................................................................................24

U.S. v. Bernier,

954 F.2d 818 (2d Cir. 1992).....................................................................................................13

U.S. v. Colon-Ortiz,866 F.2d 6 (1st Cir. 1989) ..................................................................................................12,13

U.S. v. Farhane,

634 F.3d 127 (2d Cir. 2011).....................................................................................................12

U.S. v. Loy,

237 F.3d 251 (3d Cir. 2001).....................................................................................................12

U.S. v. Preston,

739 F. Supp. 294 (W.D. Va. 1990) ..........................................................................................13

U.S. v. Ward,

CRIM. 00-681, 2001 WL 1160168 (E.D. Pa. Sept. 5, 2001) ...................................................12

Va. Socy for Human Life, Inc. v. Fed. Election Commn,263 F.3d 379 (4th Cir. 2001),

overruled on other grounds, The Real Truth about Abortion v. FEC,

681 F.3d 44 (4th Cir. 2012) .......................................................................................................8

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489 (1982) .................................................................................................................20

VIP v. Berlin,

593 F.3d 179 (2d Cir. 2010).......................................................................................................1

Vt. Right to Life Comm. v. Sorrell,221 F.3d 376 (2d Cir. 2000).......................................................................................................8

Wandering Dago Inc. v. N.Y. Office of Gen. Servs.,

No. 1:13cv1053, 2014 WL 201968 (N.D.N.Y. Jan 15, 2014) .............................................16

Zia Hospice, Inc. v. Sebelius,

793 F. Supp. 2d 1289 (D.N.M. 2011) ........................................................................................4

STATUTES

5 U.S.C. 8905-a ....................................................................................................................passim

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PRELIMINARY STATEMENT

Plaintiffs and Defendants1have filed cross motions for summary judgment on whether

8905-a and the 2001 Liquor Law are unconstitutionally vague as applied to professional and

amateur MMA.2Plaintiffs motion focused on the language of the challenged provisions, and on

the interpretations given those words by state officials. This is what governing law says should

be the focus, because the purpose of the void-for-vagueness doctrineone of the most

fundamental protections of the Due Process Clauseis to ensure that laws are crafted with

sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know

what is prohibited and to provide explicit standards for those who apply them. VIP v. Berlin,

593 F.3d 179, 186 (2d Cir. 2010). Plaintiffs motion shows that on the undisputed facts the

challenged laws are unconstitutionally vague: they cannot be understood by a person of ordinary

intelligence to prohibit amateur MMA, or professional MMA sanctioned by one of the Exempt

Organizations.

The AG, on the other hand, has chosen to move by avoidance. He devotes much of his

brief to the argument that none of the Plaintiffs has standing. (Defs. Memo. of Law in Support

of Their Mot. for Summ. J., 7/31/09, ECF No. 93 (AG Br.) at 3-10.) The law does not support

his claim. SeeLujan v. Defenders of Wildlife, 504 U.S. 555, 560-62 (1992) (little question that

plaintiffs who are direct object of government action have standing to challenge it). Neither do

the undisputed facts: because of the states interpretation of 8905-a, Plaintiffs cannot promote

and perform MMA in New York without fear of prosecution and their injury would be remedied

by a judgment that the challenged provisions are vague as applied.

1The Defendants together will be referred to as the AG for ease of reference.

2Unless otherwise indicated, abbreviations and terms are defined in Plaintiffs opening papers, filed July 31, 2014,

or in Plaintiffs Response and Counterstatement of Undisputed Facts, filed August 21, 2014 (56.1 Resp.).

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When it comes to the merits, avoidance is again the order of the day. The AG ignores the

very words of 8905-awords that the AG himself, other state officials, and this Court all read

to say an Exempt Organization cansanction professional MMAarguing instead that the

statutes plain meaning should be trumped by legislative history. Then, he also ignores the

actual text of the legislative history, which makes clear that what the Legislature intended to ban

in 1997 was no holds barred fighting, not MMA today under the Unified Rules.

What the AG avoids most glaringly, however, are the facts as to how state officials have

interpreted 8905-a. These facts establish that 8905-a encourage[s] . . . arbitrary or ad hoc

enforcement, Cunney v. Bd. of Trustees, 660 F.3d 612, 623 (2d Cir. 2011);Hill v. Colorado,

530 U.S. 703 (2000);see also Kolender v. Lawson, 461 U.S 352, 358 (1983) (the more

important aspect of [the] vagueness doctrine is . . . the requirement that a legislature establish

minimal guidelines to govern law enforcement). The AG argues the state has been consistent

that amateur MMA is not covered by 8905-a, but ignores plentiful evidence that state

officials nonetheless declared it unlawful and shut it down for a decade prior to the filing of this

suit. (AG Br. at 18) He similarly argues the state has been consistent that the Exempt

Organization provision does not permit a professional MMA event in New York (AG Br. at 14),

but ignores extensive evidence that state officials have allowed Exempt Organizations to

sanction manymixed martial arts while inexplicably prohibiting the sanctioning of the one mixed

martial art that Plaintiffs wish to practice, i.e., Mixed Martial Arts, or MMA.

As a last ditch measure the AG suggestsalmost three years into this litigationthat this

Court abstain and send the case to state court. Abstention is for unclearquestions of law, but the

AG does not specify one, simply complaining that this Court failed to take account of the

legislative history. That is incorrect: having reviewed it, this Court found the legislative history

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of limited valuebecause what the Legislature banned in 1997 was no hold barred

anything goes fighting, not MMA today under the Unified Rules.

I. PLAINTIFFS HAVE STANDING TO RAISE THEIR CONSTITUTIONAL

CHALLENGES TO 8905-a

The AGs primary defense is not the merits, but standing. A plaintiff has standing if he

has a cognizable injury traceable to the challenged statutes that can be redressed by the court.

Lujan, 504 U.S. at 560-61. Focusing on the first and third of these requirementsand often mis-

citing largely inapt casesthe AG insists none of the plaintiffs have standing. (AG Br. at 4.)

This is wrong on the undisputed facts and reflects a fundamental misunderstanding of settled law.

A.

As the Direct Objects of 8905-a, Plaintiffs Have Standing

A central distinction in the case lawoverlooked by the AGmakes clear that the

Plaintiffs have standing. InLujan, the Supreme Court explained that where the plaintiff is the

object of the state regulation, there is ordinarily little question that he has standing; it is only

when a plaintiffs asserted injury arises from the governments allegedly unlawful regulation . . .

ofsomeone else, that a greater showing is required. 504 U.S. at 561-62. The AG does not cite

a single case in which a court denied standing to a plaintiff who was the direct object of the

regulation at issue. Rather, the AG cites to cases that eitherfindstanding or deny standing to

plaintiffs who are not subject to the laws they seek to overturn.3

Here, it is the Plaintiffs who wish to promote MMA in New York and 8905-a therefore

directly regulates them, making it beyond dispute that they suffer a cognizable injury that can be

redressed by this Court. See Metro. Taxicab Bd. of Trade v. City of N.Y., No. 08 Civ. 7837 (PAC),

3The cases the AG cites thatfindstanding are:Friends of Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167

(2000);Battle v. City of N.Y.,No. 11 Civ. 3599 (RMB), 2012 U.S. Dist. LEXIS 5256 (S.D.N.Y. Jan. 13, 2012);

Mansanto Co. v. Geertson Seed Farms,561 U.S. 139 (2010);Fulani v. League of Women Voters,882 F.2d 621 (2dCir. 1989). Those that find no standing, but as to plaintiffs not subject to the laws at issue are:Lujan, 504 U.S. 555;

Summers v. Earth Isl. Inst., 555 U.S. 488 (2009);ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989); Clapper v. Amnesty

Intl USA,__ U.S. __, 133 S. Ct. 1138 (2013).

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2008 U.S. Dist. LEXIS 94021, at *15 (S.D.N.Y. Oct. 31, 2008) (plaintiff taxi owners, drivers and

users had standing to challenge rule requiring high-mileage taxis because plaintiffs were subject

to the regulations at issue and thus were the ones who will suffer injury by the imposition of the

Citys regulations, citingLujan), affd, 615 F.3d 152 (2d Cir. 2010);Zia Hospice, Inc. v.

Sebelius, 793 F. Supp. 2d 1289, 1296 (D.N.M. 2011) ([t]here is no doubt that Zia has been

subject to a regulation which it contends is unconstitutional. This is sufficient to establish

standing).

B. Zuffa Has An Injury from 8905-a That is Redressable by the Court

Having overlooked the law that as objects of 8905-a Plaintiffs have standing, the AG

makes two equally unfounded arguments that Plaintiff Zuffa lacks standing to challenge 8905-a

as to professional MMA sanctioned by an Exempt Organization.4 The first of the AGs

arguments is that Zuffa does not have concrete enough plans to hold an MMA event to make

its injury real. The second is that even if Zuffa has an injury, this Court cannot redress it because

to hold an event Zuffa needs the cooperation of the WKA, an Exempt Organization.

The idea that Zuffa lacks a sufficiently concrete injury to raise a challenge to 8905-a is

nothing short of fanciful. Zuffa is the parent company of the Ultimate Fighting Championship,

the worlds largest professional MMA promotion; it holds events regularly throughout the United

States and the world. (Epstein Decl. 15; AG 56.1 1; 56.1 Resp.1). For over seven years

Zuffa has fought a well-publicized battle to promote a professional MMA event in New York.

(56.1 Resp. 70.) Zuffa has suffered monetary and reputational injuries because it cannot,

including lost ticket sales and the loss of sponsorships. (56.1 Resp. 71.)

4Plaintiffs Miller and Lilly would also like to, but cannot, promote professional MMA. (Defs. Statement Pursuant

to Local Civil Rule 56.1 (AG 56.1) 2, 3; 56.1 Resp. 2, 3, 17, 22-24), and thus also have standing to challengethe ban on professional MMA.

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Zuffa has taken all stepsshort of violating the criminal lawto hold a professional

MMA event in New York and it need not put itself in legal jeopardy to establish standing. See

Steffel v. Thompson, 415 U.S. 452, 469 (1972) (it is not necessary that petitioner first expose

himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters

the exercise of his constitutional rights).5 Zuffas extensive efforts in New York cannot

honestly be characterized, as the AG does, as some day intentions. (AG Br. at 4.) Zuffa is not

only willing to sponsor an MMA event in New York sanctioned by an Exempt Organization

(seeAG Br. at 5), it has taken concrete steps to do so and is prepared to hold an event as soon as

it is legal. (Ratner Decl. 8-11.) Zuffa has scheduled dates for an event at Madison Square

Garden every year since 2009 hoping the legal barrier would be lifted. (Wanagiel Decl. 7-8;

Ratner Decl. 11). MSG has a date on hold for the UFC in 2015 and would make one available

in 2014. (Wanagiel Decl. 8; Crenshaw Decl. 16;see also 56.1 Resp. 9.) The UFC is a

licensed WKA promoter and has an agreement with the WKA to sanction a UFC event in New

York when lawful. (Crenshaw Decl. 15-16; 56.1 Resp. 9.)

The AG quotes testimony of Zuffas Chief Operating Officer that Zuffa had very

preliminary discussions about the possibility of the WKA sanctioning a [mixed martial arts]

event in the State of New York (AG 56.1 9), which alone is enough. But the AG ignores the

rest of Mr. Epsteins testimony; that Zuffa and the WKA had an oral agreement regarding

promoting and sanctioning a professional MMA match in New York (Levitt 26 (Epstein), at

83:1284:12); that they had a meeting of the minds that they would promote and sanction a

professional MMA match in New York together (id. at 84:1012); and that Zuffa has only not

5The AG states that Zuffa has no contract with the WKA to promote an event (AG Br. at 5), ignoring the fact that

doing so could be unlawful under 8905-a, which makes it a crime to knowingly advance . . . a combative sport.

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presented such events to date because it could get no assurances from the State that it would not

be shut down (56.1 Resp. 9, 11).

The AGs claim that Zuffa lacks standing comes with particularly ill grace, as the AGs

flip-flopping interpretation of 8905-a is a direct cause of Zuffas injury. After the AG stated

repeatedly in briefing that an Exempt Organization could sanction professional MMA, Zuffa

wrote to inform the AG that it had begun the process of planning a professional MMA event to

be held in New York, under the auspices of one of the exempt organizations listed in the

Combative Sport Ban and pursuant to the Unified Rules of Mixed Martial Arts. (56.1 Resp. 9,

11; Levitt Oppn Decl. Ex. 155;see also Levitt 37). Zuffa sought assurances that such an event

would be lawful. (56.1 Resp. 9, 11.) The AG refused to provide such assurances (56.1 Resp.

9-10), and thenfollowing an oral argument in which he unequivocally told the Court that

Exempt Organizations couldsanction professional MMAdid an about-face and said that

Exempt Organizations could notsanction professional MMA (56.1 Resp. 72). Zuffa cannot

afford to schedule an event only to have it shut down, which would impose enormous

reputational and financial costs (56.1 Resp. 9-11), and would expose the UFC to criminal

liability, which the UFC will not risk as it always abides by all laws and regulations in the

jurisdictions where it promotes MMA. (Ratner Decl. 12.) Zuffa has done more than enough to

establish standing. SeeN.Y. Pub. Interest Research Grp. v. Vill. of Roslyn Estates, 498 F. Supp.

922, 928 (E.D.N.Y. 1979) (because defendants had taken affirmative action indicating that they

believed the proposed conduct was barred by the [canvassing] ordinance plaintiff not required

to take that last remaining step . . . and risk arrest).

Both the law and the facts also answer the AGs second argument toothat relief for the

UFC is uncertain because it depends on the actions of a third party not before the Court, i.e., the

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WKA. (AG Br. at 5-6.) The AG does not cite asinglecase that supports his novel argument that

a plaintiff lacks standing simply because other steps involving other parties would have to be

taken to engage in the conduct she or he desires.6 Rather, the law is clear that a party satisfies

the redress requirement when the outcome of the case would make it likely that they be able to

do so. See Bryant v. N.Y. State Educ. Dept., 692 F.3d 202, 211 (2d Cir. 2012) (plaintiffs had

standing to challenge a New York state ban on certain disciplinary actions (aversives) even

though they did not identify a particular school that offered these techniques; [i]f New Yorks

prohibition was declared invalid, it is likely that other facilities in New York would provide

aversives);see also Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261-62 (1977)

(plaintiff had standing to challenge a zoning decision because it has shown an injury to itself

that is likely to be redressed by a favorable decisioneven though there was no guarantee that

plaintiff would be able to build the housing units because he had to secure financing, qualify for

federal subsidies, and carry through with construction).

Here, on the facts, actual reliefholding a professional MMA event in New Yorkis far

more likely for Plaintiffs than in the cases cited above, which find standing. Zuffa is a

licensed WKA promoter and the WKA stands ready to sanction a UFC New York event, just as

Madison Square Garden is ready to host it. (Wanagiel Decl. 7-8; Crenshaw Decl. 15-17;

56.1 Resp. 9, 11.)

6 Without indicating he is doing so, the AG quotes the portion of the opinion inASARCO v. Kadish, that is not aholding of the Court. (AG Br. at 5; 490 U.S. 605, 614-15 (1989) (Kennedy, J.). In any event, in the language the

AG cites, Justice Kennedy was applying the old and familiar rule that taxpayers have no standing because use of

tax revenue is within the exercise of broad and legitimate discretion of the government. 490 U.S. at615. Here,

Plaintiffs have established that their ability to promote an MMA event would be redressed by a decision of thisCourt. The AGs citation toFulani, 883 F.2d at 632 is even further afield. Again without notice that he is doing so,

the AG quotes from a concurrence; while on the relevant point the majority of the court expressly disagrees. In

Fulanithe court ruledcontrary to the AGs reason for citing the casethat plaintiff, a minor party candidate for

president did havestanding to challenge a ruling on the tax exempt status of the organization that had excluded herfrom debates, because it was clear that Fulanis asserted injuries could have been redressed by the relief she sought,

since . . . [it] at least would have prevented the Leagues sponsorship of the debates, from which Fulani claims she

was wrongfully excluded.Id. at 628.

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C. Lilly and Miller Have Standing to Challenge 8905-a as to Amateur MMA

The AG is also wrong in his argument that Plaintiffs Lilly and Miller lack standing to

challenge 8905-a as applied to amateur MMA because they presently are promoting amateur

MMA events. (SeeAG Br. at 7-10.) The question is not what Plaintiffs are doing now but

whether they have a well-founded fear of future prosecution. Am. Booksellers Found. v. Dean,

342 F.3d 96, 101 (2d Cir. 2003). The AG argues they do not, claiming [t]he Commissions

interpretation of the statute has been consistent: amateur matches or exhibitions . . . were not

covered by 8905-a. (AG Br. at 16.) But as plaintiffs make clear in their merits discussion

(infrapp. 20-22), this is false. For a decade New York stated that amateur MMA was unlawful

under 8905-a and shut it down (56.1 Resp. 47, 48) and Plaintiffs Lilly and Miller themselves

were told they could not promote amateur MMA events (id. 19, 24).

Given this historyand nothing moreLilly and Miller have a well-founded fear that

the State may change its position yet again. (56.1 Resp. 19, 26.) Courts are particularly quick

to reject arguments like the AGs when the well-founded fear arises precisely because the state

itself has switched or could switch its enforcement position. SeeVt. Right to Life Comm. v.

Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (though state claimed it had no intention of suing the

plaintiff, state was not bound by the view of the law that it assert[ed] in th[e] litigation and

there is nothing that prevents the State from changing its mind); Va. Socy for Human Life, Inc.

v. Fed. Election Commn, 263 F.3d 379, 388 (4th Cir. 2001) (holding plaintiff had standing to

challenge a FEC regulation, even though the FEC had recently voted to no longer enforce it,

because [t]he Commissioners who adopted the policy might be replaced with ones who disagree

with it, or some of the Commissioners who voted might change their minds), overruled on other

grounds, The Real Truth about Abortion v. FEC, 681 F.3d 44 (4th Cir. 2012).

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But there ismore: although the AG now claims the text of 8905-a governs only

professional MMA, two state officials (including AGs 30(b)(6) witness from the criminal

enforcement division) testified in this case that the legislative history alone provided a

reasonable basis to prosecute amateurs. (56.1 Resp. 74.) This obviously provides the basis

for a well-founded fear of prosecution. See Am. Booksellers,342 F.3d at 101 (despite the

governments assertion that a statute did not apply to plaintiffs, plaintiffs had an actual and

well-founded fear that the law will be enforced against [them] because it could be read to

apply);Allstate Ins. Co. v. Serio, No. 97 CIV. 0670 (RCC), 2000 WL 554221, at *13 (S.D.N.Y.

May 5, 2000) (plaintiff had a well-founded fear the law would be enforced against it given

government had threatened plaintiff with a fine).

Moreover, to this day the line between what is professional and what is amateur

remains cloudy at best, leaving Lilly and Miller in jeopardy even given the States current

posture of permitting amateur MMA. As the AG candidly admits, there is an absence of a

definition in 8905-a of the terms professional and amateur. (AG Br. at 6.) The declarants

from the DOS claim the term is defined by the boxing regulations, but the AG asserts that the

term should be given its common sense definition. (CompareWatson Decl. 3-5, 10;

Baldwin Decl. 2, with 56.1 Resp. 56.) The AGs moving papers highlight the lack of clarity.

Describing cases in which the AG considered a prosecution under 8905-a, the AGs declarant

hedges constantly: he puts amateur in scare quotes (Maher Decl. 6(c)); he says the AG

concluded the fighters are amateur in the sense that they were neither being paid nor had

professional fighting backgrounds (Maher Decl. 5 (emphasis added)); and he states the AG

appearsto have concluded that if the facts showed that the fighters would not be paid, a

violation of 8905-a would be difficult to prove beyond a reasonable doubt (Maher Decl. 9

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(emphasis added)). Even then, he attaches a caveat: [t]hese decisions not to prosecute cannot be

deemed the adoption of a position applicable to future cases by the OAG in its role as a law

enforcement agency because each case must be assessed on its particular facts. (Maher Decl.

9.) The AGs brief hedges in the same way. He states his office declined to prosecute under

this statute because the events in question were determined to be arguablyamateur. (AG Br. at

17 (emphasis added).) Referring to Plaintiffs Lilly and Miller, he says they held what to them

are amateur MMA events. (AG Br. at 16.)

Nowhere is there a clear definition of what is professional under 8905-a, leaving

amateur promoters not only at risk that amateur MMM again will be deemed unlawful, but also

with an all-too-well-founded fear of crossing the undefined amateur-professional line. State

officials cannot get clear on the most basic definitional questions: whether charging admission

makes an event professional, whether a fighter can fight in a different discipline as a professional

and be an amateur for MMA, or even on the question of compensation.7(56.1 Resp. 34.) This

lack of clarity is unacceptable in a criminal statute; it leaves Plaintiffs in jeopardy.

D.

The Stipulating Plaintiffs Have Standing And Should Not Be Dismissed

Finally, the AG argues that on the basis of a stipulation entered into to avoid unnecessary

depositions, the remaining Plaintiffs lack standing. Stipulating Plaintiffs are high-profile

professional MMA fighters, amateur fighters, profit from the MMA business, or are avid MMA

fans: there is no serious doubt that they have standing. Metro. Taxicab, 2008 U.S. Dist. LEXIS

7See56.1 Resp. 34 (AG did not prosecute one case [a]though the event was charging an admission price for

tickets, yet testified that I think you can make the argument that if a venue is making money, that thatsprofessional as well; Former SAC General Counsel said if a participant is a professional in one combat sport, he is

a professional in all combat sports and the AG states that a professional fighting background is a consideration in

determining prosecution. However, SAC told Miller that it was fine for a professional boxer to compete in an

amateur MMA match because a professional boxer doesnt make his living as an amateur mixed martial artist;

Most witnesses testified that accepting money, gifts, or prizes makes a fighter professional, but SAC Chair Woman

Melvina Lathan told a promoter that giving prizes would not make an event professional.)

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94021, at *15 (drivers andusers had standing to high-mileage taxicab rule as the ones who will

suffer injury by the imposition of the Citys regulations);suprapp. 3-4;seealsoAiello v. Town

of Brookhaven, 136 F. Supp. 2d 81, 106 (E.D.N.Y. 2001) (addressingsua spontethe issue of the

plaintiffs standing and concluding that given the proximity of plaintiffs to the pond and creek,

and their obvious interest in the environmental and health ramifications of contamination in

those bodies of water, their standing is clearly manifested). And, given that Plaintiffs Zuffa,

Lilly, and Miller plainly have standing, it is unnecessary to address this question. SeeBabbitt v.

United Farm Workers,442 U.S. 289, 299 n.11 (1979) (declining to examine if each plaintiff has

standing after finding that one plaintiff has a sufficient personal stake to render the issue

justiciable).

In any event, the AG mischaracterizes the purpose of the negotiated stipulation, and thus

wrongly argues the Stipulating Plaintiffs should be dismissed. The stipulation was entered into

because in a vagueness challenge any testimony about Plaintiffs subjective understanding of the

statute is irrelevant as a matter of law.8SeeMoore v. Philips, No. 04 Civ. 8908(DLC), 2006 WL

1006538, at *5 (S.D.N.Y. Apr. 18, 2006) (the question is not whether plaintiff thought he would

be punished, but whether the language of the statute provides notice that plaintiffs behavior is

eligible for punishment). As such, the Stipulating Plaintiffs could have nothing to say on the

merits; they could only reiterate their stated intention to participate in, profit from, or watch

MMA. (56.1 Resp. 4.) The stipulation saved the cost and time of 13 unnecessary depositions.

II. SECTION 8905-A IS VAGUE AS TO PROFESSIONAL MMA

As the Supreme Court said inHill v. Colorado, [a] statute can be impermissibly vague

for either of two independent reasons: (1) if it fails to provide people of ordinary intelligence a

8Plaintiffs Zuffa, Miller, and Lilly were deposed because they had direct interactions with state officials interpreting

and enforcing 8905-a and the 2001 Liquor Law, which evidence is relevant to the issues before the Court.

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reasonable opportunity to understand what conduct it prohibits, or(2) if it authorizes or even

encourages arbitrary and discriminatory enforcement. 530 U.S. at 732; Op. at 21 (quotingHill).

The AG devotes exactly six paragraphs of his brief to analyzing the merits of Plaintiffs

professional MMA vagueness claim. (AG Br. at 12-15.) With regard to the notice prong of

vagueness law, the AG ignores the statutory text altogether in favor of the legislative history,

though the legislative history is irrelevant given the statutes clear text, and in any event supports

Plaintiffs case not his own. (Id. at 13-14.) As to the enforcement prong of vagueness law, the

AG stakes his whole case on the factual assertion that the SAC has consistently taken the

position . . . that the Exempt Organizations provision does not permit a professional MMA event

in New York, ignoring abundant evidence to the contrary. (Id. at 14-15.)9

A. Resort to Legislative History Is Inappropriate Here Under the Notice Prong,

and In Any Event It Does Not Support the AGs Case

Either 8905-a means what it says on its facethat Exempt Organizations can sanction

any professional martial arts match or exhibitionor it is unconstitutionally vague. The

statutory language itself must be clear enough so that Persons of ordinary intelligence will not

have to guess at its meaning, U.S. v. Colon-Ortiz,866 F.2d 6, 9 (1st Cir. 1989); accordU.S. v.

Farhane, 634 F.3d 127, 142 (2d Cir. 2011) (in vagueness challenge [t]he task of interpreting a

statute necessarily begins with its language).

9The AG also argues that because 8905-a requires a knowing violation, vagueness is substantially mitigated.

(AG Br. at 14.) Scienter cannot eliminate vagueness . . . if it is satisfied by an intent to do something that is initself ambiguous, as is the case here. U.S. v. Loy, 237 F.3d 251, 265 (3d Cir. 2001). In this case, scienter mitigates

nothing as Plaintiffs have no way of knowing what conduct is prohibited: 8905-a simply fails to inform them thatMMA sanctioned by Exempt Organizations runs afoul of its prohibitions. To permit the scienter requirement to cure

an otherwise vague statute would rob the vagueness doctrine of all of its meaning, for legislatures would simply

repair otherwise vague statutes by inserting the word knowingly.Id.; seeU.S. v. Ward, CRIM. 00-681, 2001 WL

1160168, at *25 (E.D. Pa. Sept. 5, 2001) (quotingLoyand holding that a medical regulation was impermissibly

vague despite the requirement of a willful violation because although the defendant could have reasonably known

that the regulation applied to his conduct, it was difficult to determine the precise manner of compliance with theregulation).

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Forcing a plaintiff to chase and interpret the legislative history defeats the whole point of

the vagueness doctrine, i.e., that the ordinary person, forced to align their conduct to the criminal

law, has clear notice of what that law says. See Colon-Ortiz, 866 F.2d at 9 (in vagueness

challenge [i]t is not enough for the congressional intent to be apparent elsewhere if it is not

apparent by examining the language of the statute);Fleuti v. Rosenberg, 302 F.2d 652, 654-55

n.5 (9th Cir. 1962) (refusing to consider legislative history in a challenge to an immigration

statute because the court could not assum[e] that all persons . . . know the relatively inaccessible

legislative history of statutes), vacd on other grounds, 374 U.S. 449 (1963); U.S. v. Preston,

739 F. Supp. 294, 302 (W.D. Va. 1990) (construction that nullifies language in the statute

even if it reflects the clear intent of Congress as evidenced in the legislative history . . . violates

the Due Process Clause); accord Chatin v. Coombe, 186 F.3d 82, 89 (2d Cir. 1999) (unfair to

require petitioner to perform[] the lawyer-like task of statutory interpretation by reconciling the

text of three separate documents to determine whether conduct was permitted); see also U.S. v.

Bernier, 954 F.2d 818, 820 (2d Cir. 1992) (noting that the court need not consider the

legislative history of [the statute] because of the statutes clarity . . .).

In ignoring the text, and looking only to the legislative history, the AG stakes his whole

case on what the Court should not consider, and ignores entirely what it must.

1. The Plain Text of 8905-a Permits Exempt Organizations to

Sanction Professional MMA

The text of 8905-a is clear in permitting Exempt Organizations to sanction professional

MMA. There can be no dispute of this point: the AG specifically told this Court that in

interpreting 8905-a I dont think on these issues we have to go any further than the

text. (ECF No. 42, at 46:7-8.) Indeed, he said on many occasions that Exempt Organizations

can sanction professional MMA, asserting that there was not much wiggle room here . . . . [O]n

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its face, the ban of combative sport does not appear . . . to apply to a match or exhibition

sanctioned by listed organizations (id. at 46:1-6), and that a plain reading of the statute . . .

leaves open the possibility that MMA fights could at least under some circumstances be made legal if

sanctioned by a listed organization. (ECF No. 37, at 30.) He is hardly alone. James Leary, the

DOS attorney who answered inquiries to the SAC after 2007 was asked in his deposition whether

the WKA . . . [could] sponsor a professional UFC event under the Unified MMA rules and

responded that [t]he term martial arts says anything done by any of these groups . . . including

mixed martial arts, and that could be a plain language interpretation. (56.1 Resp. 78.) And the

DOS Auditor, entirely independent of this litigation, reached exactly the same conclusion. (Id.

45). This Court similarly concluded a plain reading of [8905-a] suggests that Plaintiffs would

be allowed to promote a professional MMA event in New York if the event were sanctioned by

one of the exempt organizations. (Op. at 24.)

The AGs attempt to explain why he flip-flopped as to the meaning of 8905-a only

serves to underscore Plaintiffs argument that the provision is unconstitutionally vague. The AG

says that after he unequivocally told this Court that the plain text of 8905-a allowed an Exempt

Organization to sanction professional MMA, the then-General Counsel of the DOS contacted

him to tell him this was not the SACs position. (56.1 Resp. 88; Watson Decl. 7.) For the

prior sixteen months, however, counsel to the AG read the textof 8905-a and came to the same

conclusion as Plaintiffs, Mr. Leary, the DOS Auditor and this Court: that Exempt Organizations

cansanction professional MMA. (56.1 Resp. 44-45, 72.) Moreover, he assured this Court he

checked it with [SAC] counsel. And I couldnt find a single lawyer in that agency that disagreed

with me on the reading of it. (56.1 Resp. 45; ECF No. 42, at 70:13-17.) It hardly aids the

AGs argument now to explain that he only abandoned his long-held interpretation of the plain

text upon learning that some at the SAC disagreed with it. [I]f administrators cannot determine

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the meaning of a prohibition, those subject to it can hardly [be] expect[ed] . . . to do so. Hayes

v. N.Y. Atty Grievance Comm., 672 F.3d 158, 169 (2d Cir. 2012).

2. The Legislative History Does Not Support The AGs Position; MMA

Today Is Not The Ultimate Fighting The Legislature Banned

Even if resort to legislative history were permissible when statutory language is clear, the

legislative history here supports Plaintiffs, not the AG. Citing to no specific page of the

legislative history, but alluding to its supposed primary purpose, the AG says that Exempt

Organizations cannot sponsor the very Ultimate Fighting that the statute was enacted to

prevent. This only begs the essential question: isMMA today under the Unified Rules the

very Ultimate Fighting the law banned.

The facts are undisputed that what the Legislature banned in 1997 is not MMA today. In

1997, the Legislature shut down anything goes or no holds barred fighting that involved few

rules, little refereeing, no weight classes, and many troubling moves. (56.1 Resp. 78.) Plaintiffs,

however, promote MMA under the Unified Rules, not anything goes fighting. (AG 56.1 1;

56.1 Resp. 1, 78-79, 81.) The AG himself recognizes the difference, stating as an undisputed

fact that Plaintiff Zuffa, LLC is the . . . leading promoter ofProfessional Unified Rules [MMA].

(AG 56.1 1 (emphasis added).) The Unified Rules carefully regulate or ban everything the

Legislature found problematic. (Ratner Decl. 13-16.) That is why MMA is lawful today

throughout the country and the world, even where no holds barred fighting once was banned.

(56.1 Resp. 80.) And it is why this Court was correct in findingassuming as true facts

Plaintiffs have now proventhat [t]he legislative history is of limited value because MMA

has changed substantially since [8905-a] was enacted, making the legislative history, which

relates to earlier versions of MMA, of little relevance. (Op. at 24-25.)

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In his moving brief, the AG engages in a sleight of hand to gloss over what he cannot

explain away: that Ultimate Fighting circa1997 is not the same as MMA today under the

Unified Rules. He first says, unremarkably, that [t]he legislative history of 8905-a shows that

a total ban of the professional sportthen known as Ultimate Fighting(the trademark now

owned by plaintiff Zuffa (2d Am. Compl. 27810

)), was the primary purpose of the lawand that

the listed Exempt Organizations were not intended to be free to sponsor the very Ultimate

Fighting that the statute was enacted to prevent (AG Br. at 13-14 (emphasis added)). But

thenwith no bridge sentence to get therehe concludes that construing the statute to allow an

Exempt Organization to sanction Ultimate Fighting would undermine the statutes stated

purpose andwould circumvent the total ban of mixed martial arts . (Id. at 14) Missing is the

lynchpin sentence that wouldif it were true but it is notequate the very Ultimate Fighting

that the statute was enacted to prevent with mixed martial arts. The AG offers no proof

because he has nonethat the Legislature meant to ban mixed martial arts sanctioned by an

Exempt Organization. The Legislature never once even used the phrase mixed martial arts, in

8905-a or its legislative history. (56.1 Resp. 89.) Most tellingly, for the first sixteen months of

this case, the AG often cited the very same legislative history (see 56.1 Resp. 44-45, 72); yet

having read it, still believed and told the Court that Exempt Organizations could sanction

professional MMA. (Suprapp. 13-14.)

10The AG suggests that because Zuffa bought the trademark Ultimate Fighting Championship, and the Legislature

banned Ultimate Fighting circa 1997, then what Zuffa promotes today must be banned. To criminalize the name

Ultimate Fighting would raise First Amendment issues. See Wandering Dago Inc. v. N.Y. Office of Gen. Servs.,992 F. Supp. 2d 102, __ (N.D.N.Y. 2014) (corporate name . . . is a form of expressive speech protected under the

First Amendment). And, the AGs argument would collapse if the plaintiff was Bellator, or any MMA promotion

other than the Ultimate Fighting Championship. Brands change all the time. Wells Fargo today is a banking

conglomerate, but it began as a shipping company, including, notably, the Pony Express. Say Western Union andone thinks of telegrams, which it no longer delivers (its primary business is money orders). Perhaps the most apt

analogy is Coca-Cola. The pause that refreshes contained amounts of cocaine until 1903 and would be illegal

today, but Coca-Cola as it presently exists is not unlawful.

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In depositions, state officials repeatedly confirmed that MMA today under the Unified

Rules is not the same thing as the anything goes fighting banned in 1997. Glenn Alleyne, the

SACs 30(b)(6) witness and the person most knowledgeable about combative sports at the

SAC was asked: you understand professional MMA to be different than ultimate or extreme

fighting, correct? and replied yes, acknowledging the impact of the Unified Rules. (56.1 Resp.

78.) James Leary, who regularly handled combative sports matters at the DOS, stated that: As

long as its conducted under the unified rules, MMA is different than it was in 1997, prohibiting

many moves like biting, eye gouging, fish hooking, and some other things. (56.1 Resp. 78.)

Hugo Spindola discussed the problems the 1997 Legislature was addressing: no holds barred

fighting, a cage, few rules, two weight classes, et cetera. He was then asked Is that your

understanding of the UFC today? and replied No. And again: Its different today, correct?

Yes. (56.1 Resp. 78.)11

And Marc Ratner, who was involved with the development of the

Unified Rules explains that modern MMA conducted under the Unified Rules bears little relation

to the sport that was banned by the New York Legislature in 1997. (Ratner Decl. 13-15.)

That MMA today under the Unified Rules is not the same as the extreme no holds

barred or ultimate fighting of 1997 is underscored by former opponents who have changed

their views, including Governor Pataki, who signed 8905-a ([w]ith more rigorous oversight,

training and medical requirements - mixed martial arts has made considerable strides to ensure

the safety of participants) (56.1 Resp. 79), and Senator John McCain (The sport has grown

up. The rules have been adopted to give its athletes better protections and to ensure fairer

11The onlyassertion in the entire record that MMA today is what the Legislature banned in 1997 is Susan Watsonsconclusory statement that the statutes legislative history . . . shows that its principal intent was to prevent events

which were then known as Ultimate Fighting or Extreme Fighting, and are now called MMA events. (Watson

Decl. 6.) Ms. Watson offers no basis for her conclusion, which is contrary to all the other evidence. Her

unsupported, self-serving, conclusory statementcontrary to all else in the recorddoes not create a disputed issue

of fact.See Ghirardelli v. McAvey Sales & Serv., Inc. 287 F. Supp. 2d 379, 391 (S.D.N.Y. 2003) (a partys self-

serving account that disputes the clear and unequivocal documentary and testimonial evidence is insufficient tocreate genuine issue of material fact to avoid summary judgment), affd, 98 Fed. Appx. 909 (2d Cir. 2004).

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competition) (id.). According to the current SAC Chair Melvina Lathan, Everyone at some

point who was against M.M.A. says its entirely different now. (Id.)

B. Section 8905-a Fails the Enforcement Prong Because the State Has Taken

Inconsistent and Arbitrary Enforcement Actions

As to the second, or enforcement, prong of vagueness doctrine, the AGs sole argument

is that [t]he SAC has consistently taken the position, certainly since 2002 if not longer, that the

Exempt Organizations provision does not permit a professional MMA event in New York, even

if sanctioned by an Exempt Organization.12

Yet, the germane question under the enforcement

prong is not whether the state has prohibited the sanctioning of professional MMA, but whether,

in light of the full pattern of enforcement of 8905-a, the state is making arbitrary or

discriminatory choices about what to allow or disallow. Hill v. Colorado, 530 U.S. at 732.

In examining the States enforcement decisions it is useful to utilize the AGs own

terminology. In his Supplemental Memorandum of March 22, 2013, the AG said: MMA or

capitalized Mixed Martial Arts refers to the sport promoted by Zuffa, LLC, also known as

Ultimate Fighting, as opposed to mixed martial arts (all lower case), which refers generally to

any sport that combines martial arts techniques. The AG thus acknowledges that MMA is but a

subset of the broader category of mixed martial arts.

It is undisputed that the State regularly has allowed many mixedmartial arts to take place

if sanctioned by an Exempt Organization, and forbids only the sanctioning of one particular

mixed martial art: MMA. James Leary gave Madison Square Garden the blessing to hold a Shin

Do Kumate Event. (56.1 Resp. 45.) State officials have confirmed it was lawful for the WKA

to sanction Glory, K-1, and Muay Thai, all of which have taken place in New York in recent

12The AG refers to the SAC as though it is the only entity involved in enforcing 8905-a. (AG Br. at 14-15 & n.4.)

But as the record makes clear, DOS officials were actively involved in those decisions, and privilege log entries

indicate key decisions went up to the Governors office. (56.1 Resp. 84.)

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years. (56.1 Resp. 45.) Yet, each of these events is mixed martial arts. (Ratner Decl. 17;

Crenshaw Decl. 12; 56.1 Resp. 45.) Glory is a mix of several combat disciplines including

Karate, Muay Thai, Tae Kwon Do and traditional Boxing (56.1 Resp. 45; Ratner Decl. 17;

Crenshaw 12); K-1 is a combat sport that combines the most effective stand-up fighting

strategies from bare knuckle Karate, Kung Fu, Muay Thai, Taekwon-do, Savate, San Shou/San

Da, Western Kickboxing, and traditional boxing (56.1 Resp. 45; Ratner Decl. 17; Crenshaw

12); Shin Do Kumate draws from the art of Muay Thai and allows techniques from a variety of

other Martial Arts disciplines[] [s]uch as Kyokushin Karate, Tae Kwon Do, Sanshou,

Kickboxing and Persian wrestling neck clinch (56.1 Resp. 45); Muay Thai combines hand

and foot strikes with other techniques derivative [of] other martial arts such as throws and foot

sweeps. (56.1 Resp. 45; Ratner Decl. 17; Crenshaw 12.)

The AG seeks to push aside the inconvenient fact that the State regularly allows mixed

martial arts, while inexplicably barring MMA, by stating that Plaintiffs cannot complain of these

decisions because (a) their conduct is at the core of what 8905-a prohibits, and (b) Plaintiffs

cannot raise issues about hypothetical cases. (AG Br. at 16.) But, as the previous section

made clear, it is undisputed that Plaintiffs conduct is notat the core of what 8905-a says or

what the legislature had in mind; MMA today under the Unified Rules is not what 8905-a

banned. (suprapp. 15-17.) And Plaintiffs are not complaining about hypothetical cases, their

complaint is the State cannot distinguish its treatment of MMA from the posture it has taken

toward the actualmixed martial arts cases described above.13

13SeeHayes, 672 F.3d at 170 (rules validity exacerbated by evidence that administrators had indicated [to

Hayes] that letters must be six inches in height but in other cases had accepted four-inch letters); Chatin, 186

F.3d at 89 (relying on evidence that the treatment of prisoners who engage[d] in individual, silent, demonstrative

prayer . . . ha[d] varied greatly to conclude that officials had unfettered discretion in interpreting the rule);

Blackwelder v. Safnauer, 689 F. Supp. 106, 127-28 (N.D.N.Y. 1988) (comparing the policies of three different

school districts to conclude that a compulsory education scheme did not give school officials too much discretion).

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In light of States generally welcoming posture toward mixed martial arts, its treatment of

professional MMA is at best ad hocor arbitrary, at worst nakedly discriminatory, and thus

unconstitutionally vague under the enforcement prong of vagueness doctrine. See Vill. of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503 (1982) (considering the

risk of discriminatory enforcement [not] insignificant based on conflicts in enforcement

officials testimony as to their understanding of ordinances scope); Cunney v. Bd. of Trustees,

660 F.3d 612, 623 (2d Cir. 2011) (finding based on enforcement record that challenged measure

could encourage potentially arbitrary or ad hoc enforcement.); Chatin,186 F.3d at 89

(relying on evidence of inconsistent enforcement to reach inescapable conclusion . . . that

[enforcement officials] have unfettered discretion in interpreting what conduct is prohibited

and therefore violate[d] the second prong of the vagueness test.)

III. THE STATES ENFORCEMENT RENDERS 8905-A VAGUE AS TO

AMATEUR MMA

The AGs argument regarding the merits of the amateur MMA vagueness claim rests on

one assertion: [t]he Commissions interpretation of the statute has been consistent: amateur

matches or exhibitions . . . were not covered by 8905-a. (AG Br. at 18.) He thus denies that the

SAC has shut down amateur MMA or said it is unlawful. The facts, however, belie the claim.

It is undeniable that the State prohibited and shut down amateur MMA events from 1997

to 2012. (See 56.1 Resp. 47-49.) The AG concedes that SAC General Counsel Hugo Spindola

sent cease and desist orders to the promoters of amateur events. (AG Br. at 17.) Spindola was

not alone: Current SAC Chair Lathan, and DOS Attorneys Mossberg and Leary, also sent cease

and desist orders regarding amateur MMA. (56.1 Resp. 41, 43; Levitt 122-24, 133.)

It is also undeniable that state officials repeatedly told people amateur MMA was

unlawful when askedspecificallyabout it. In October of 2008, Ruth Colon of the DOS received

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an inquiry specifically asking about amateurkickboxing and amateurMMA. (56.1 Resp. 51;

Levitt 102.) While explaining that amateur kickboxing was permissible, she told the promoter

that the intent of 8905-a was to impose an across the board prohibition on mixed martial arts

activities in the State. (Id.) Similarly, when asked about an amateurgrappling event, Mr.

Spindola told the inquirer that the amateurevent may be considered a mixed martial art which

this law intended to ban. (56.1 Resp. 49, 51-53; Levitt 98.) James Leary wrote Leslie Trebby,

a counterpart at the State Liquor Authority, that the SAC has interpreted []8905-a . . . . as

prohibitingprofessional martial arts events that are not sanctioned by a listed martial arts

organization and asprohibiting all mixedmartial arts(ultimate fighting) within the State. (56.1

Resp. 52-53; Levitt 103.) There is no ambiguity here.

In an attempt to deal with the many documents contrary to his claim of consistent

treatment of amateur MMA, the AG and declarants have contrived a story that in the early years

SAC officials responded to inquiries in general terms, without distinguishing amateur MMA,

because they were unaware of its presence. But as the documents quoted above show, this is

false: people asked specifically about amateur MMA and were told specifically it was unlawful

and amateur MMA events were shut down.14

(56.1 Resp. 49, 51-53.) Indeed, Ms. Watson

concedes in thefirstdeclaration she filed with the AGs motion that the SACs notice to amateur

MMA promoters was unclear for more than a decade and thus needed to be clarified

(Declaration of Susan Watson, 7/31/14, ECF No. 98, at 9), a fact then tellingly cleaned up in a

14Mr. Spindolas claim that he would have approved amateur events, but no one proved an event was amateur, is

both untrue and irrelevant. Even if it were true, it does not matter because the SAC has no more authority overprofessional MMA than it has over amateur MMA,i.e. none. But it is not true. For example, Mr. Spindola did not

object to an event because he had no proof it was amateur; his specific objection was that it could be confused with

amateur MMA. (56.1 Resp. 49, 51-53; Levitt 61.) And Mr. Spindolas supposed process for confirming the

amateur nature of events was a fiction. The AG admitted the process never existed. (56.1 Resp. 49, 50.)

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late-filed replacement.15

(AG Br. at 17-18.) Section 8905-a has been applied inconsistently to

amateur MMA and thus is unconstitutionally vague as applied.

IV. PLAINTIFFS HAVE STANDING AS TO THE VAGUE 2001 LIQUOR LAW

A.

Plaintiffs Have Standing to Challenge The 2001 Liquor Law

The AG argues that Plaintiffs have no standing to challenge the 2001 Liquor Law

because they are not licensees for on-premises consumption of alcoholic beverages and because

they have not applied for temporary liquor licenses. (AG Br. at 6-7, 9-10.) However, Plaintiffs

are not seeking to vindicate the rights of the liquor licensees, they are seeking to vindicate their

ownrights, which are impinged upon by the 2001 Liquor Law. (2d Am. Compl. 443 (Every

major sports and entertainment venue in New York holds a retail liquor license, including

Madison Square Garden, the Barclays Center, HSBC Arena, among many others. Thus, the

2001 Liquor Law [] effectively bans combative sports such as mixed martial arts from being

performed in any large (and most small) venues in New York).) The 2001 Liquor prevents

Plaintiffs from promoting the events they wish hold in New York, causing them direct harm.

In a nearly identical case, the Ninth Circuit found standing. LSO Ltd. v. Stroh,205 F.3d

1146 (9th Cir. 2000). InLSO, the plaintiff sought to hold an erotic art exhibition at a convention

center in California, which the California Department of Alcoholic Beverage Control attempted

to prevent by threatening the convention center with sanctions, including losing its liquor

license. Id. The plaintiff, who did not possess a liquor license, sued, seeking to hold its

exhibition. Id. The defendants arguedas the AG does herethat the plaintiff lacked standing

because the regulatory threats were directed at liquor licensees, not the plaintiff. Id. at

15These critical admissions were excised in asecondsworn declaration submitted on behalf of Ms. Watson more

than a week after the deadline for filing motions for summary judgment, with no redline or other notice that therewere changes. (Declaration of Susan Watson, 8/8/14, ECF No. 101.) Defendants should not be permitted to rely on

a sanitized, untimely declaration.

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1153. The Ninth Circuit disagreed, holding that plaintiff did in fact have standing because the

alleged injury caused by preventing the exhibition was to its ownconstitutional rights. Id. at

1153-54;see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.7 (1963) (in challenge by

bookpublishersto a law requiring notification to book distributorsof obscene or corrupting

books, book publishers standing has not been, nor could it be, successfully questioned despite

the fact that the disputed actions were directed at book distributors.)

B. The 2001 Liquor Law is Unconstitutionally Vague

The 2001 Liquor Law is vague for the same reasons as 8905-a. The text of the Liquor

Lawwhich incorporates by reference the text of 8905-aclearly permits Exempt

Organizations to sanction professional MMA, yet, contrary to the plain language, the SLA has

interpreted the 2001 Liquor Law to prohibit both amateur and professional MMA at venues

holding liquor licenses, even if sanctioned by Exempt Organizations. (56.1 Resp. 87.) The

SLA generally has followed the SACs guidance in deciding which martial arts may be

sanctioned, and when it has not it has adopted even more incoherent and ad hocstandards with

no basis in the statutes text or in the legislative history. (56.1 Resp. 86-88.)

The vagueness of the Liquor Law and 8905-a has permitted the SLA to discriminate

between events it wants to allow (amateur boxing sanctioned by USA Boxing and some martial

arts sanctioned by Exempt Organizations) and those that it does not (professional and amateur

MMA) despite no basis for such distinction in the law. (56.1 Resp. 86.)

V. SECTION 8905-a IS VAGUE AS TO MMA ON INDIAN RESERVATIONS AND

PLAINTIFFS HAVE STANDING TO CHALLENGE IT

It is uncontested that Zuffa is interested in promoting events on Indian reservations in

New Yorkparticularly if it is unable to do so elsewhere in the statejust as it has promoted

events on Indian reservations in other states. (Epstein Decl. 23.) As such, Zuffa clearly has

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standing to challenge the Ban as it applies to Indian reservations. (See suprapp. 3-5.) And,

under both the notice and enforcement prongs, 8905-a is vague as to whether such events are

permissible today because though 8905-a is silent, the State is inconsistent: sometimes asserting

that it does ban MMA on such territory (56.1 Resp. 57-58), and other times asserting that it

does not (id.).

VI. THIS IS NOT AN APPROPRIATE CASE FOR ABSTENTION

Almost three full years into this litigation, facing an overwhelming factual case against

him, the AG now suggests this Court might abstain underRailroad Commission of Texas v.

Pullman Co.,312 U.S. 496 (1941). Clearly a last-ditch delaying tactic, the suggestion is also

wrong on the merits. Because [r]ights delayed . . . are often rights destroyed . . .Pullman

abstention has been used only very sparingly, Tunick v. Safir, 209 F.3d 67, 78 (2d Cir. 2000).

This is hardly an appropriate case.

Pullmanabstention exists to resolve unsettledstate legalquestions, but the AG never

specifies one. The AGsPullmanargument is based entirely on his oft-repeated view that this

Court is impermissibly failing to take account of the legislative history of 8905-a. (AG Br. at

20.) He insists that New York courts take legislative history into account, even if it is

completely contrary to the text of the statute. (Id.at 20-21.) The AGs reading of New York

case lawa reading that would set New York apart from the rest of the United Statesis itself

deeply contestable. (See, e.g., Op at 24-25 (citingRiley v. Cnty. of Broome, 95 N.Y.2d 455, 463,

719 N.Y.S.2d 623, 627 (2000)) for the proposition that [a]lthough legislative history may be

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relevant, in general, the unambiguous language of the statute is alone determinative.)16

In

any event, in this constitutional challenge, federal law trumps state law, and under federal law,

legislative history cannot be used in a vagueness challenge to overrule plain text. (Seesuprapp.

12-13.)

But more to the point, this Court did notignore the legislative history. It considered that

history and found, properlyas discussedsuprathat it was of limited value precisely

because of what the Plaintiffs have now proven: MMA has changed substantially since the Ban

was enacted, making the legislative history, which relates to earlier versions of MMA, of little

relevance. (Op. at 24-25.)

Thus, all that is left is the factual questionand it too is undisputedof whether MMA

under the Unified Rules is the same thing as the no-holds barred fighting fully described in that

legislative history. CountlessPullmancases make clear that abstention is for uncertain state

law, and is therefore inappropriate where the question is one of certain state law, or of fact, or

even of mixed questions of law and fact. See, e.g., Wisconsin v. Constantineau, 400 U.S. 433,

438 (1971) ([Abstention] only applies where the issue of state law is uncertain.); Vinyard v.

King, 655 F.2d 1016, 1020 (10th Cir. 1981) ([I]t may be [difficult] to apply the law to the facts,

but abstention is inappropriate on this basis.);DeSimone v. Bd. of Educ., S. Huntington Union

Free Sch. Dist., 612 F. Supp. 1568, 1572 (E.D.N.Y. 1985) (Pullman abstention is inappropriate

for mixed questions of law and fact).

CONCLUSION

Plaintiffs respectfully request that Defendants Motion for Summary Judgment be denied.

16See also, e.g.,N.Y. State Bankers Assn v. Albright, 38 N.Y.2d 430, 436-37, 381 N.Y.S.2d 17, 20 (1975), also cited

by the AG (AG Br. at 13), which states that although [i]nquiry into the meaning of statutes is never foreclosed at

the threshold . . . . [t]here is, of course, no more persuasive evidence of the purpose of a statute than the words by

which the legislature undertook to give expression to its wishes (quoting U.S. v. Am. Trucking Assns, 310 U.S.534, 543-44 (1940)).

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Dated: New York, New York

August 21, 2014MORRISON & FOERSTER LLP

Barry Friedman

40 Washington Square SouthRoom 317

New York, New York 10014-1005

Phone: 212.998.6293Fax: 212.995.4030

[email protected]

By: /s/ Jamie A. Levitt

Jamie A. Levitt

Jonathan C. Rothberg250 West 55th StreetNew York, New York 10019-9601

Phone: 212.468.8000

Fax: [email protected]

[email protected]

Attorneys for Plaintiffs


zuffa's opposition.pdf

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