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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK



J ON J ONES, GINA CARANO, FRANKIE
EDGAR, MATT HAMILL, BRIAN STANN,
ZUFFA, LLC d/b/a ULTIMATE FIGHTING
CHAMPIONSHIP, DON LILLY, SHANNON
MILLER, DANIELLE HOBEIKA, BETH
HURRLE, DONNA HURRLE, STEVE
KARDIAN, J OSEPH LOZITO, ERIK OWINGS,
CHRIS REITZ AND J ENNIFER SANTIAGO,
Plaintiffs,
-against-

ERIC T. SCHNEIDERMAN, in his official
capacity as Attorney General of the State of New
York, DENNIS ROSEN, in his official capacity as
Commissioner and Chairman of the New York
State Liquor Authority, and J EANIQUE GREEN,
in her official capacity as Commissioner of the
New York State Liquor Authority,
Defendants.






11 Civ. 8215 (KMW) (GWG)
ECF Case



DEFENDANTS REPLY MEMORANDUM OF LAW IN SUPPORT


OF THEIR MOTION FOR SUMMARY JUDGMENT

ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendants
120 Broadway - 24th Floor
New York, New York 10271
J OHN M. SCHWARTZ
J ULIA H. LEE
J OSHUA PEPPER
STEPHEN S. HO,
Of Counsel
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TABLE OF CONTENTS

Page

ARGUMENT ...................................................................................................................................1

POINT I:
PLAINTIFFS LACK STANDING ............................................................................................1

A. Section 8905-a ................................................................................................................1

B. The 2001 Liquor Law .....................................................................................................6

POINT II:
THIS COURT SHOULD ABSTAIN FROM RULING WITH RESPECT TO
PROFESSIONAL MMA SANCTIONED BY AN EXEMPT ORGANIZATION. ..................6

POINT III:
SECTION 8905-a IS NOT UNCONSTITUTIONALLY VAGUE AS APPLIED TO
PROFESSIONAL MMA SANCTIONED BY AN EXEMPT ORGANIZATION. ..................7

POINT IV:
SECTION 8905-a DOES NOT APPLY TO AMATEUR MMA. ...........................................11

POINT V:
SECTION 8905-a CLEARLY APPLIES ON INDIAN RESERVATIONS. ..........................12

POINT VI:
THE 2001 LIQUOR LAW IS NOT UNCONSTITUTIONALLY VAGUE AS TO
PLAINTIFFS ...........................................................................................................................13

CONCLUSION ..............................................................................................................................13

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TABLE OF AUTHORITIES

Cases Page(s)

ASARCO, Inc. v. Kadish,
490 U.S. 605 (1989) ...................................................................................................................4
Azuike v. BNY Mellon,
962 F. Supp. 2d 591 (S.D.N.Y. 2013) ........................................................................................3
Babbitt v. United Farm Workers,
442 U.S. 289 (1979) ...............................................................................................................5, 7
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963) .....................................................................................................................6
Bordell v. General Electric Co.,
922 F.2d 1057 (2d. Cir. 1991)....................................................................................................1
Bryant v. N.Y. State Educ. Dept,
692 F.3d 202 (2d Cir 2012)........................................................................................................2
Clapper v. Amnesty International USA,
___ U.S. ___, 133 S. Ct. 1138 (2013) .................................................................................... 1-2
Evergreen Assn v. City of New York,
740 F.3d 233 (2d Cir. 2014).....................................................................................................10
Gonzalez v. Carhart,
550 U.S. 124 (2007) .................................................................................................................10
Greater New York Met. Food Council v. McGuire,
6 F.3d 75 (2d Cir. 1993).............................................................................................................7
Hedges v. Obama,
724 F.3d 170 (2d Cir. 2013).......................................................................................................5
J ones v. Schneiderman,
974 F. Supp. 2d 322 (S.D.N.Y. 2013) ..................................................................................3, 11
Lamar Adver. of Penn, LLC v. Pitman,
573 F. Supp. 2d 700 (N.D.N.Y 2008) ........................................................................................5
LSO Ltd v. Stroh,
205 F.3d 1146 (9
th
Cir. 2000) ....................................................................................................6
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ...............................................................................................................1, 3
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TABLE OF AUTHORITIES (contd)


Cases Page(s)
Metro. Taxicab Bd. of Trade v. City of New York,
No. 08 Civ. 7837, 2008 U.S. Dist. LEXIS 94021 (S.D.N.Y. Oct 31, 2008) .............................2
Morris v. Eversley,
343 F. Supp. 2d 234 (S.D.N.Y. 2004) ........................................................................................7
N.Y. Public Interest Research Group, Inc. v. Village of Lawrence,
498 F. Supp. 922 (E.D.N.Y. 1979) ........................................................................................ 2-3
Newman-Green, Inc. v. Alfonzo-Lorrain,
490 U.S. 826 (1989) ...................................................................................................................3
OMalley v. City of Syracuse,
813 F. Supp. 133 (N.D.N.Y. 1993) ..........................................................................................12
Poe v. Ullman,
367 U.S. 497 (1961) ...................................................................................................................4
Public Citizen v. U.S. Dept of J ustice,
491 U.S. 440 (1989) ...................................................................................................................7
Railroad Commn of Texas v. Pullman Co.,
312 U.S. 496 (1941) ...................................................................................................................6
Riley v. County of Broome,
95 N.Y.2d 455 (2000) ................................................................................................................7
Secy of Interior v. California,
464 U.S. 312 (1984) ...................................................................................................................6
Seegars v. Ashcroft,
396 F.3d 1248 (D.C. Cir. 2005) .................................................................................................4
Summers v. Earth Island Institute,
555 U.S. 488 (2009) ...................................................................................................................4
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011), cert. denied sub nom. Sabir v. U.S.,
132 S. Ct. 833 (2011) .......................................................................................................8, 9, 11
United States v. Loy,
237 F.3d 251 (3d Cir. 2001).......................................................................................................9
United States v. Morrison,
596 F. Supp. 2d 661 (E.D.N.Y. 2009) ...............................................................................10, 11
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TABLE OF AUTHORITIES (contd)


Cases Page(s)
United States v. Rybicki,
354 F.3d 124 (2d Cir. 2003).....................................................................................................11
United States v. Simmons,
343 F.3d 72 (2d Cir. 2003).........................................................................................................9
Vill. of Hoffman Estates v. Flipside,
455 U.S. 489 (1982) ...................................................................................................................9
Village of Arlington Heights v. Met. Housing Dev. Corp.,
429 U.S. 252 (1977) ...................................................................................................................2
VIP of Berlin, LLC v. Town of Berlin,
593 F.3d 179 (2d Cir. 2010).......................................................................................................8
White v. U.S.,
601 F.3d 545 (6
th
Cir. 2010) ......................................................................................................5
Zia Hospice, Inc v. Sibelius,
793 Supp. 2d 1289 (D. N.M. 2001) ...........................................................................................2
Statutes
N.Y. CPLR
7801-7806 ...........................................................................................................................13
N.Y. Unconsol. Laws
8905-a ........................................................................................................................... passim
8907.......................................................................................................................................11
8931.................................................................................................................................11, 13
19 N.Y.C.R.R. 205.1 ...................................................................................................................11


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Defendants ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of


the State of New York (AG); and DENNIS ROSEN, in his official capacity as Commissioner
and Chairman of the New York State Liquor Authority; and J EANIQUE GREEN, in her official
capacity as Commissioner of the New York State Liquor Authority (collectively, the SLA
Defendants), submit this reply memorandum in support of their motion for summary judgment
pursuant to Fed. R. Civ. P. 56. Summary judgment should be granted in defendants favor
because plaintiffs lack standing and their claim is fatally deficient. Plaintiffs opposition papers
fail to show that plaintiffs have standing or that 8905-a or the 2001 Liquor Law is vague.
ARGUMENT
POINT I: PLAINTIFFS LACK STANDING.
A. Section 8905-a
In an effort to overcome their failure to establish standing, plaintiffs seek to rely on Lujan
v. Defenders of Wildlife, 504 U.S. 555 (1992), see Pl. Opp. Mem. at 3,
1
to assert that since they
deem themselves to be the object of state regulation, they are automatically entitled to
standing. The Court in Lujan did not suggest, however, and it is not the law, that the object of a
statute or regulation is somehow relieved of the burden of establishing the elements of standing.
See, e.g., Bordell v. General Electric Co., 922 F.2d 1057, 1060 (2d. Cir. 1991) (federal
newsletter aimed at regulating federal employees speech regarding certain sensitive information
did not confer standing on plaintiff-employee who engaged in such speech where, as here,
plaintiff could not demonstrate a palpable injury a required element of standing). Because
plaintiffs cannot satisfy the injury and redressability requirements of standing, they cannot
maintain this action. See generally Clapper v. Amnesty International USA, ___ U.S. ___, 133 S.

1
Unless otherwise indicated, abbreviations and terms are defined in Defendants Memorandum in Support of Their
Motion for Summary J udgment (Def. SJ Mem.) or Defendants Memorandum in Opposition to Plaintiffs Motion
for Summary J udgment (Def. Opp. Mem.).
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Ct. 1138, 1147, 1150 fn. 5 (2013). The cases on which plaintiffs rely do not change that
conclusion. See Pl. Opp. Mem. at 3-4. While the courts in those cases did find standing, they
nonetheless recognized that it was necessary for the respective plaintiffs to satisfy the standing
requirements. See Metro. Taxicab Bd. of Trade v. City of New York, No. 08 Civ. 7837, 2008
U.S. Dist. LEXIS 94021, at *13-14 (S.D.N.Y. Oct 31, 2008);Zia Hospice, Inc v. Sibelius, 793
Supp. 2d 1289, 1296 (D. N.M. 2001).
Plaintiffs contend that Zuffa has satisfied the redressability requirement of standing
because it has taken all steps short of violating the criminal law to hold a professional MMA
event in New York and that it has an agreement with the WKA. Pl. Opp. Mem. at 5. The
record supports neither contention. Zuffa has a mere oral understanding to have the WKA
sanction such an event with no written contract or essential details, such as firm dates or division
of profits. Crenshaw Decl. (Docket #112) 15; Ratner Decl. (Docket #113) 10. Plaintiffs
position thus differs substantially from that of Village of Arlington Heights v. Met. Housing
Dev. Corp., 429 U.S. 252 (1977), cited at Pl. Opp. Mem. at 7, in which the plaintiff builder had
contracted to construct housing if not blocked by Village action. Id. at 261. Nor is the courts
finding in Bryant v. N.Y. State Educ. Dept, 692 F.3d 202 (2d Cir. 2012) that aversive
interventions for disabled children would likely be available to plaintiffs if New Yorks ban
against them were lifted, apposite here; the Bryant court concluded that if the ban were lifted,
multiple facilities would offer such procedures, not just the one plaintiffs children attended, a
very different issue than Zuffas need to negotiate a deal with the sole surviving Exempt
Organization if the ban were lifted. Zuffas and the WKAs alleged fear of violating the law
could easily have been allayed by a conditional agreement on all critical terms subject to the final
determination of the action (or favorable legislation). Unlike N.Y. Public Interest Research
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Group, Inc. v. Village of Lawrence, 498 F. Supp. 922 (E.D.N.Y. 1979), cited at Pl. Opp. Mem. at
6, any fear of prosecution from such an agreement would be unreasonable. Cf. J ones v.
Schneiderman, 974 F. Supp. 2d 322, 344-45 (S.D.N.Y. 2013) (J ones II) (allegations regarding
potential criminal liability from 8905-as knowingly advances or profits from language
insufficient to support as-applied vagueness challenge).
The tenuousness of Zuffas agreement with the WKA is evident by the fact that the
pleadings contain no mention of this alleged agreement or even an understanding. See Docket
#1 180, 255-275; Docket #34 154-207; Docket #54 154-207, 279. Plaintiffs
declarations carefully avoid any disclosure of when the alleged understanding between Zuffa
and the WKA occurred. Federal jurisdiction ordinarily depends on the facts as they exist when
the complaint is filed. Lujan, 504 U.S. at 571 fn. 4 (quoting Newman-Green, Inc. v. Alfonzo-
Lorrain, 490 U.S. 826, 830 (1989)); accord Azuike v. BNY Mellon, 962 F. Supp. 2d 591, 598
(S.D.N.Y. 2013). The lack of any allegations in any of the pleadings about an alleged agreement
with the WKA suggests that at the commencement of this action, Zuffa and the WKA had no
relationship other than as competitors in other states. They have not sustained their burden of
showing that Zuffa has standing on the Exempt Organization issue at the commencement of the
action or even at the time of any amended pleading.
At this juncture, plaintiff Zuffa can only speculate that if it should prevail, it will be able
to quickly finalize all necessary details, as its Senior Vice President predicts, Ratner Decl.
10. This prediction is entirely dependent on the yet-to-be-negotiated terms and conditions,
which may not be mutually acceptable. These various contingencies show the uncertainty Zuffa
faces in achieving any redressability for its alleged injury. It is thus pure speculation whether its
alleged injury would be redressable.
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Regarding professional MMA on Indian reservations, Pl. Opp. Mem. at 23-24, Mr.
Epstein says only that Zuffa would consider promoting an event in such a location. Epstein
Decl. 23 (emphasis added). This is still a some day intention that depends on the agreement
of Indian tribes and other independent actors not before the court. See Summers v. Earth Island
Institute, 555 U.S. 358, 496 (2009)([S]ome day intentions without any description of
concrete plans, or indeed even any specification of when the some day will be do not support a
finding of the actual or imminent injury that our cases require. (internal citation omitted));
ASARCO, Inc. v. Kadish, 490 U.S. 605, 614-15 (1989)(opinion of KENNEDY, J .) (favorable
decision unlikely to redress injury where relief depends on the unfettered choices made by
independent actors not before the courts and whose exercise of broad and legitimate discretion
the courts cannot presume either to control or predict).
With respect to plaintiffs contention that plaintiffs Lilly and Miller have a well-founded
fear of future prosecution for their amateur MMA events, plaintiffs now have a clear statement
of the Commissions position today on which it can rely. Baldwin Decl. 3. The OAG has never
prosecuted anyone under this law. Maher Decl. 6. A relatively long history of non-
enforcement defeats standing. See Poe v. Ullman, 367 U.S. 497, 507-08 (1961) (plurality
opinion) (where contraceptive statute had been on books for eighty years and been enforced only
once, pre-enforcement challenge was not justiciable); Seegars v. Ashcroft, 396 F.3d 1248, 1252
(D.C. Cir. 2005) ([e]vidence that the challenged law is rarely if ever enforced . . . may be
enough to defeat an assertion that a credible threat exists). The period of non-enforcement here
is shorter than in those cases only because the statute was more recently enacted.
Plaintiffs emphasis on the testimony of two state officials that there is a reasonable
basis to apply 8905-a to amateur events would not help plaintiffs even if the testimony were
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admissible, which it is not. See Motion to Strike, at 4, 7. Both officials made it clear that such a
reading was not the position of their agency or even their personal interpretation of the statute.
Levitt Decl. Ex. 7 (Maher Tr.) at 82:15-84:19; 97:5-15; Id. Ex. 12 (Leary Tr.) at 44:8-48:5. In
any event, the statements have no bearing on whether Lilly and Miller face a threatened injury
that is certainly impending or are subject to a substantial risk that the harm will occur.
Also, Lilly and Miller cannot satisfy the redressability requirement because, although
amateur MMA is not prohibited by 8905-a, it may well be illegal under other statutes, such as
reckless endangerment and assault. Levitt Decl. Ex. 12 (Leary Tr.) at 44:16-45:3; Baldwin Decl.
3. In one of the matters in which the OAG considered prosecution under 8905-a, it
prosecuted instead under other laws. Maher Decl. 5. A judgment in favor of Lilly and Miller
in this action would not relieve them of the risk of prosecution under other criminal statutes. See
White v. U.S., 601 F.3d 545, 552 (6
th
Cir. 2010) (challengers of federal animal welfare statute as
applied to cockfighting lacked standing since state laws would still ban it); Lamar Adver. of
Penn, LLC v. Pitman, 573 F. Supp. 2d 700, 709 (N.D.N.Y 2008) (no redressability where a
favorable decision for plaintiff on challenged sign code provision would not allow it to put up its
proposed sign, which would still violate another unchallenged provision).
Plaintiffs get no help to support the standing of the Stipulating Plaintiffs from Babbitt v.
United Farm Workers, 442 U.S. 289 (1979). Unlike defendants here, who have given this Court
separate grounds to dismiss each plaintiff, the defendants in that case did not distinguish between
plaintiffs. Id. at 299 n.11 (noting that defendants had never contended that the standing of any
particular [plaintiff] [was] more dubious than the standing of any other). Courts analyze the
standing of each plaintiff separately. See Hedges v. Obama, 724 F.3d 170, 188-205 (2d Cir.
2013). A court may decline to address standing of other plaintiffs only when their positions are
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identical to those with standing. Secy of Interior v. California, 464 U.S. 312, 319 (1984). The
positions of the Stipulating Plaintiffs, who assert only claims that have been dismissed, are not
the same as Zuffas with respect to the Exempt Organization or Indian reservation vagueness
issues, or Lillys or Millers with respect to the vagueness claim as to amateur MMA.
B. The 2001 Liquor Law
Plaintiffs attempt to support their contention that Zuffa has standing to challenge the
2001 Liquor Law with LSO Ltd v. Stroh, 205 F.3d 1146 (9
th
Cir. 2000) and Bantam Books, Inc.
v. Sullivan, 372 U.S. 58 (1963), both of which suggest no more than that First Amendment
claims may warrant a more expansive view of standing. See Bantam, 372 U.S. at 64 n. 6 ([t]he
constitutional guarantee of freedom of the press embraces circulation of books as well as their
publication, . . . . Unless [the publisher] is permitted to sue, infringements of freedom of the
press may too often go unremedied); LSO, 205 F.3d at 1155 (when the threatened enforcement
effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of
standing). No such First Amendment claims are implicated here.
Plaintiffs 2001 Liquor Law claim relies on the Exempt Organization clause of 8905-a.
2d Am. Complaint 445. Since Zuffa has no standing to challenge 8905-a on that issue, Point
I.A, supra, it has no independent claim against the 2001 Liquor Law. It cannot independently
satisfy the redressability prong on the 2001 Liquor Law because even a favorable judgment
would leave it still bound by the ban of professional MMA under 8905-a.
POINT II: THIS COURT SHOULD ABSTAIN FROM RULING WITH RESPECT TO
PROFESSIONAL MMA SANCTIONED BY AN EXEMPT ORGANIZATION.
If there is any question of 8905-as applicability to Exempt-Organization-sponsored
MMA events, this Court should allow a state court to make such an interpretation of New York
law. See Railroad Commn of Texas v. Pullman Co., 312 U.S. 496, 500 (1941). In response to
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this point, plaintiffs contend that federal law trumps state law and that under federal law
legislative history cannot overrule plain text. Pl. Opp. Mem. at 25. Neither assertion is
correct. Where a state court could construe a state statute to avoid a federal constitutional
question, abstention is appropriate and may be required. Babbitt, 442 U.S. at 306. Abstention is
especially appropriate in a vagueness challenge of a statute that, as here, state courts have not yet
construed. Greater New York Met. Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir. 1993).
Moreover, federal courts examine other evidence of the purpose or object of statutes as the
surest guide to their meaning where a literal reading would compel an odd result. Public
Citizen v. U.S. Dept of J ustice, 491 U.S. 440, 454-55 (1989); accord Morris v. Eversley, 343 F.
Supp. 2d 234, 243 (S.D.N.Y. 2004).
The New York courts, while recognizing the general rule that the language of a statute
is determinative, insist that legislative history is not to be ignored, even if the words be clear.
Riley v. County of Broome, 95 N.Y.2d 455, 463 (2000) (quoting McKinneys Consol. Laws of
N.Y., Book 1, Statutes, 124). If the Exempt Organization clause is ambiguous, as plaintiffs
allege, the New York courts should have an opportunity to interpret it. Babbitt, 442 U.S. at 308.
POINT III: SECTION 8905-a IS NOT UNCONSTITUTIONALLY VAGUE AS APPLIED
TO PROFESSIONAL MMA SANCTIONED BY AN EXEMPT ORGANIZATION.
Plaintiffs unconvincingly argue in opposition that 8905-a is unconstitutionally vague
as applied to professional MMA sanctioned by an Exempt Organization. Here, the fact that
plaintiffs have never promoted a professional MMA match in New York because they know that
it is illegal is perhaps the simplest proof that the statute gives sufficient definiteness for plaintiffs
to understand what is prohibited and that it does not encourage arbitrary or discriminatory
enforcement. Ratner Decl. 7; Lilly Tr. 20:9-20:16, 55:5-56:3; Miller Tr. 43:16-24. Also, both
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the statutes explicit language


2
and legislative history establish that 8905-a prohibits
professional ultimate fighting, which, despite plaintiffs repackaging of the sport as Mixed
Martial Arts, is precisely what plaintiffs seek to promote. See United States v. Farhane, 634
F.3d 127, 143 (2d Cir. 2011), cert. denied sub nom. Sabir v. U.S., 132 S. Ct. 833 (2011) (courts
should consider both statutory language and legislative history).
A statute provides sufficient explicit guidance when the conduct at issue falls within the
core of the statutes prohibition. VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 191 (2d
Cir. 2010). Section 8905-a prohibits plaintiffs, or anyone else, from sanctioning the sport now
known as professional MMA, irrespective of its name. The statute bans any professional match
that allows kicks and punches, with a few exceptions. Unconsol. Laws 8905-a(1). With
respect to martial arts, 8905-a authorizes the Commission to promulgate regulations for the
inclusion and/or removal of approved organizations, in which case such inclusion would be
based on the following: (a) the organizations primary purpose should be to provide instruction
in self-defense techniques; (b) its rules should require the use of hand, feet, and groin protection;
and (c) the rules should require the immediate termination of a bout when a participant has
suffered or is about to suffer serious injury. Unconsol. Laws 8905-a(1)(a)-(c). Zuffa, a global
media company whose rules prohibit foot protection and do not require the referee to stop a bout
under any particular circumstances, does not qualify. Epstein Tr. 18:5-8; Levitt Decl. Ex. 27 at
5. In short, 8905-as plain language demonstrates that it prohibits ultimate fighting/MMA and
that plaintiffs cannot circumvent the prohibition by obtaining sanctioning by an organization that

2
Although plaintiffs state in their sub-point heading that the plain text of 8905-a Permits Exempt Organizations
to Sanction Professional MMA, Pl. Opp. Mem. at 13, plaintiffs say nothing about the text itself. Instead, plaintiffs
harp on the AGs short-lived mistake that he promptly corrected. See Pl. Opp. Mem. at 13-14. As defendants have
explained, the AGs mistaken remarks, which were promptly corrected and prejudiced no one, are not evidence of
inconsistent enforcement or of any alleged vagueness of the statute. See Def. SJ Mem. (Docket #93) at 15; Def.
Opp. Mem. (Docket #107) at 16-17.

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currently qualifies as an Exempt Organization.


3

Plaintiffs argue that MMA today is a different sport than what it was in 1997, when the
Legislature banned it. Pl. Opp. Mem. at 15-17. In their attempt to establish standing, however,
they argue the opposite i.e., that their sport was the object of 8905-a. See Pl. Opp. Mem. at
3-4. Plaintiffs cannot have it both ways. The fact that plaintiffs sport was the primary target of
8905-a (as the legislative history establishes) demonstrates that plaintiffs have full notice that
8905-a bans it.
Moreover, the Unified Rules, to which plaintiffs primarily point to support their argument
that MMA is a different sport now than it was in 1997, Pl. Opp. Mem. at 15, demonstrate the
opposite. MMA remains a virtually anything-goes sport. The rules prohibit only a small number
of actions, many of which such as biting, eye-gouging, and throat strikes were already
banned in 1997. Compare Levitt Decl. Ex. 27 at 8 with Ex. 25 at 33. The addition of a few more
weight classes and the ban of a few more actions do not fundamentally change the sport.
Plaintiffs argument equates to arguing that baseball is no longer baseball because the spitball
has been outlawed or because of the designated hitter.
Plaintiffs also argue that this Court should not consider the legislative history of 8905-
a. See Pl. Opp. Mem. at 12. Plaintiffs cite Farhane for this point, but the same paragraph that
plaintiffs quote also says that we do not look at statutory language in isolation, that we
consider language in context, and that we utilize the benefits of statutory construction and
legislative history. Farhane, 634 F.3d at 142 (internal citations omitted) (emphasis added).
Additionally, plaintiffs argument that state actors have arbitrarily enforced 8905-a is

3
A scienter requirement, as in 8905-a, may mitigate a laws vagueness. Vill. of Hoffman Estates v. Flipside, 455
U.S. 489, 499 (1982). Citing the Third Circuit in United States v. Loy, 237 F.3d 251, 265 (3d Cir. 2001), plaintiffs
argue otherwise, but the Second Circuit has declined to follow Loys conclusion that the term pornography in a
parole condition was unconstitutionally vague. See United States v. Simmons, 343 F.3d 72, 81 (2d Cir. 2003).
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unpersuasive. As noted above, plaintiffs conduct professional MMA falls within the core of
the prohibition of 8905-a. Although this ends the inquiry, the statute also provides standards
that preclude arbitrary enforcement.
Arbitrary enforcement cannot occur unless the statute vests virtually complete discretion
in the hands of law enforcement to determine whether the statute has been violated. Gonzalez
v. Carhart, 550 U.S. 124, 150 (2007). The use of objective criteria precludes complete
discretion. Evergreen Assn v. City of New York, 740 F.3d 233, 244 (2d Cir. 2014). Plaintiffs
do not argue that the criteria in 8905-a are not objective. Instead, plaintiffs argue that the
State regularly allows other sports that plaintiffs describe as other mixed martial arts. Pl.
Opp. Mem. at 19. First, this argument inaccurately portrays the Commission and the AG as
allowing something over which they have no control. Alleyne Decl. 5; Maher Decl. 3, 8.
In any event, to the extent that the Commission has offered any opinions regarding the legality of
these alleged events, their opinions were based on the information that they received. Alleyne
Decl. 16, 19. Plaintiffs have presented no evidence that either the AG or the Commission
ever received any information that would have suggested that these events violated 8905-a.
The inquiring individuals presented them as kickboxing events. Alleyne Decl. 14, 17, 20, 21
and Exs. A-D. If these events called K-1, Shin Do Kumate, and Glory by their
promoters are actually mixed-martial-arts events, as plaintiffs now argue, Pl. Opp. Mem. at 18-
19, then this means only that the promoters (including plaintiffs witness Dylan Wanagiel)
misrepresented their true nature to the Commission. A lawbreakers ability to thwart
enforcement of a statute does not render that statute inoperative. United States v. Morrison, 596
F. Supp. 2d 661, 679 (E.D.N.Y. 2009). Moreover, even if the facts could be deemed to show
lack of enforcement, a clear statute cannot be rendered vague by the failure of the executive
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branch to enforce what the law clearly proscribes. Id. at 694.


POINT IV: SECTION 8905-a DOES NOT APPLY TO AMATEUR MMA.
The vagueness inquiry has two prongs: (1) sufficient definiteness for notice to
individuals, and (2) sufficient guidance to prevent arbitrary or discriminatory enforcement.
Farhane, 634 F.3d 127, 136. In view of the laws definition of the banned conduct as
professional, the notice prong appears satisfied.
4
Plaintiffs argue that the state has arbitrarily
enforced 8905-a by allegedly shut[ting] down amateur MMA events. Pl. Opp. Mem. at 20.
Even if this were so at one time, enforcement of 8905-a against amateurs that the Commission
mistakenly believed to be professional does not constitute evidence of vagueness. Prosecutors
sometimes make mistakes as to the reach of criminal statutes; courts correct them. United States
v. Rybicki, 354 F.3d 124, 143 (2d Cir. 2003), cert. denied, 543 U.S. 809 (2004). Moreover,
irrespective of what may have sporadically occurred years ago, plaintiffs now have explicit
statements from the Commission and the AG that 8905-a does not apply to amateur MMA.
Watson Decl. 9; Spindola Decl. 8; Baldwin Decl. 3.
In any event, plaintiffs misinterpret the undisputed facts. First, plaintiffs point to some
pre-2008 cease-and-desist letters by then-Commission counsel Hugo Spindola to promoters who
plaintiffs now claim were promoting amateur events. Pl. Opp. Mem. at 20. Mr. Spindola always
believed that these events were professional. Spindola Decl. 9. Next, plaintiffs misinterpret an
e-mail by Ruth Colon as advising an inquirer that amateur MMA is banned, but the e-mail
simply forwards the statute itself and refers generally to mixed martial arts and the like,

4
Although 8905-a does not contain its own definition of professional, definitions of both professional and
amateur appear in the Commissions enabling statutes and regulations with respect to boxing. N.Y. Unconsol.
Laws 8907, 8931; 19 N.Y.C.R.R. 205.1(a) and (l). The Commission referred to these definitions in interpreting
8905-a. Watson Dec. 10; Spindola Decl. 10. The words also have commonly understood dictionary
definitions that are not significantly different. J ones II, 974 F. Supp. 2d at 342-43. Applying any of these
definitions, 8905-a must apply to Zuffas conduct and cannot apply to that of Lilly or Miller.
Case 1:11-cv-08215-KMW-GWG Document 123 Filed 09/04/14 Page 16 of 18
12

thereby not fully explaining what 8905-a bans. Levitt Decl. Ex. 102. Plaintiffs also point to an
e-mail from J ames Leary of the Commission to the State Liquor Authority (SLA), but this e-
mail was not about MMA. It responded to an inquiry about a WKA-sanctioned
kickboxing/muay thai event, which it advised did not violate 8905-a. Levitt Decl. Ex. 103.
Finally, pointing to an inadvertently filed Watson Declaration, dated J uly 29, 2014
(Docket #98), replaced by the Watson Declaration, dated J uly 31, 2014 (Docket #101),
5

plaintiffs argue that a statement in the earlier declaration that the response of the Commission to
inquiries about amateur MMA was clarified is evidence that the Commissions notice to
amateur promoters was unclear for more than a decade. Pl. Opp. Mem. at 21. Even if the
inadvertently filed earlier declaration were considered, however, it shows that Ms. Watson was
referring to the Commissions communications to the public, not the statute, as requiring
clarification. Following its plain language, the Commission has consistently interpreted 8905-a
as inapplicable to amateur matches or exhibitions. Watson inadvertently filed Decl. 7.29.14
(Docket #98) 9; Watson Decl. (Docket #101) 9; Spindola Decl. 8; Baldwin Decl. 3. If
any miscommunications occurred, or if a Commission staff member occasionally used inartful
language or gave a wrong answer, it is not evidence of vagueness of the statute. See OMalley v.
City of Syracuse, 813 F. Supp. 133, 144 (N.D.N.Y. 1993) (state witnesses inability to give
consistent definition of stripper was not evidence of vagueness).
POINT V: SECTION 8905-a CLEARLY APPLIES ON INDIAN RESERVATIONS.
Although 8905-a applies on Indian reservations, plaintiffs argue that the State on one
occasion asserted that 8905-a did not apply on reservations. Pl. Opp. Mem. at 24. Even if this
were true (which it is not, see Alleyne Decl. 32), as noted above, an occasional wrong answer

5
For the circumstances of the inadvertent filing and its correction, see Supplemental Declaration of J ohn M.
Schwartz, dated September 4, 2014, submitted herewith.
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13

by a state agent is not evidence of vagueness. Points II.B.1, III, supra.


POINT VI: THE 2001 LIQUOR LAW IS NOT UNCONSTITUTIONALLY VAGUE AS
TO PLAINTIFFS

Plaintiffs contend that contrary to the plain language of the 2001 Liquor Law, the SLA
has interpreted that law to prohibit MMA, both amateur and professional, and has granted
licenses and permits to amateur boxing sanctioned by USA Boxing and some martial arts
sanctioned by Exempt Organizations but not to MMA, despite no basis for such distinction in
the law. Pl. Opp. Mem. at 23.
6
Thus, plaintiffs are complaining not of vagueness but rather of
SLA enforcement contrary to the statute. Plaintiffs complaints about SLA enforcement
allegedly unauthorized by the law would more appropriately be asserted in state court pursuant to
N.Y. CPLR 7801-7806; they do not support the claim on which they have sued here, 2d Am.
Complaint 440-448, which should be dismissed.
CONCLUSION
Defendants respectfully request that this Court grant their motion for summary judgment.
Dated: New York, New York
September 4, 2014 ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendants
By:
_/s/_____________________
J OHN M. SCHWARTZ
Special Litigation Counsel
120 Broadway - 24th Floor
New York, New York 10271
J OHN M. SCHWARTZ (212) 416-8559
J ULIA H. LEE
J OSHUA PEPPER
STEPHEN S. HO,

Of Counsel

6
Expressly excluded from New Yorks regulation of boxing are amateur boxing contests or exhibitions sponsored
by or under the supervision of the U.S. Amateur Boxing Federation. N.Y. Unconsol. Laws 8931.
Case 1:11-cv-08215-KMW-GWG Document 123 Filed 09/04/14 Page 18 of 18