Case 1:16-cv-04870-ALC Document 25 Filed 08/05/16 Page 1 of 3

JUDD BURSTEIN, P.C.
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August 5, 2016

VIA EMAIL AND ECF
Honorable Andrew L. Carter, Jr.
United States District Court
Southern District of New York
40 Foley Square
New York, New York 10007
Re:

World of Boxing LLC, et al., v. Wilder, et at. I Docket No. 16 cv-04870-ALC

Dear Judge Carter:
I write in response to Mr. Yalowitz's August 1, 2016 letter to the Court (the "August 1
Letter").
At the outset, I want to make clear that my failure to seek a Pre-Motion Conference was the
result of a staff error caused by a delay in time between my initial completion of the Memorandum
of Law in support of Defendants ' Motion to Dismiss the Complaint ("Motion"), and my firm's actual
filing of the Motion. Exhibit A hereto is a July 14,2016 email, attaching what I thought would be
the final Memorandum of Law, that I sent to one of my paralegals for proofreading. At the time, this
case had not been assigned to Your Honor. My plan was to file the motion on Monday, July 18,
2016 -- which was before Your Honor accepted assignment of this case on July 20,2016. As the
Court can see from the ECF filings, all of the Declarations submitted in support of the Motion (other
than mine, which I was planning to draft on the day of filing), were signed prior to July 18, 2016.
However, on July 16,2016, I traveled to Birmingham, Alabama, to see Defendant Deontay Wilder's
("Wilder") bout that night, and to then attend a meeting with the World Boxing Council ("WBC")
the next day. During that meeting, WBC President Mauricio Sulaiman, acknowledged that, contrary
to the allegations in Plaintiffs' Complaint, the Wilder/Povetkin bout had been cancelled due to Mr.
Povetkin's failed drug test. In light of this statement, I decided to delay filing the Motion until I
received a transcript of the meeting with the WBC. By the time I received the transcript and had the
Motion filed on July 25, 2016, Your Honor had agreed to accept the assignment of this case.
Regrettably, my office did not check the Docket before filing, and I apologize for the error. Had the
Docket been checked, I would not have filed the Motion, but would have instead submitted a letter
seeking a Pre-Motion Conference.

Case 1:16-cv-04870-ALC Document 25 Filed 08/05/16 Page 2 of 3
JUDD BURSTEIN.

P. C.

Honorable Andrew L. Carter, Jr.
August 5, 2016
Page 2
Turning to the merits of Mr. Yalowitz' s letter, it proceeds upon a misreading of the very
Complaint that he filed. According to Mr. Yalowitz: "The Complaint alleges that defendants were
required to travel to Moscow, but instead cancelled their flights and left the World Boxing Council
("WBC") with no choice but to postpone the contest. Complaint ~ 62." (The August 1 Letter at pp.
1-2)
However, that is not what Paragraph 62 of the Complaint alleges. Rather, the plain language
of Paragraph 62 makes clear that Wilder was not required to fly to Moscow until May 16, 2016, and
therefore he could not have been in breach of his agreement with Plaintiff World of Boxing LLC
("WOB") even ifhe had cancelled a scheduled May 15,2016 flight.
Thus, the gravamen of the Complaint, as set forth in Paragraph 62 thereof, is that the WBC
cancelled the bout because Wilder returned to the United States before its ruling:
The Bout Agreement required that Wilder report to Moscow, Russia, seven days
before the Bout, or by May 16, 2016. Wilder was scheduled to depart from England
for Moscow on Sunday, May 15,2016. As of Sunday, May 15,2016, the WBC still
had not made any announcement regarding the Bout. Nevertheless, Wilder did not
board his flight to Russia and instead immediately returned to the United States. As
a result, a few hours later, the WBC was forced to announce that the Bout had been
postponed.
(Complaint at ~ 62)
Perhaps more incredibly than misrepresenting the allegations of Plaintiffs' own Complaint,
Mr. Yalowitz's letter admits that the sole basis for the allegation in Paragraph 62 of the Complaint
is a quote from an ESPN report (with no information about the date of the article or where one can
find it) which amounts to nothing more than four levels of unsworn hearsay: (a) an ESPN news
report, (b) describing the contents of something supposedly said to an unnamed person at ESPN.com,
(c) by an unnamed member of Wilder' s team, and (d) about what an unnamed person from the WBC
had explained as the reason for the fight not going forward.
It is absurd to suggest that a breach of contract claim based solely upon one inadmissible
media report containing multiple levels of hearsay should be sustained in the face of (a) a statement
from the WBC President himself that the WBC's ruling was based solely upon Povetkin's failed
drug test, and (b) sworn Declarations, supported by documentary admissible evidence, that the
media report was wrong. Accordingly, it would appear that Mr. Yalowitz should be excused from
filing responsive papers because he has, in essence, acknowledged that any response to Defendants'
Motion would be frivolous and likely sanctionable.

Case 1:16-cv-04870-ALC Document 25 Filed 08/05/16 Page 3 of 3
JUDD BURSTEIN.

P. C.

Honorable Andrew L. Carter, Jr.
August 5,2016
Page 3
As for that branch of Defendants ' Motion to dismiss the defamation claim, Mr. Yalowitz has
missed a crucial nuance in the law: even if an "opinion" can be construed as a statement of fact, it
is still regarded as a constitutionally protected "opinion" so long as the statement "is accompanied
by a recitation of the facts upon which it is based." Steinhilber v. Alphonse, 68 N.Y.2d 283,289-90
(1986). Mr. Yalowitz's letter is silent on this principle of law; just as it is silent concerning the
Complaint's allegation that when Mr. Wilder stated that using PED's in boxing is "like someone
coming to a fight with a knife in their hands," he was defaming Mr. Povetkin by claiming that Mr.
Povetkin had literally been planning to bring an actual knife into the ring. (Complaint at ~ 67(b))
Finally, we do not understand Mr. Yalowitz's objection to Defendants' contention that the
Complaint in this action should be brought as a counterclaim in what we have denominated as
Action 1. He does not dispute any of the authority cited in Defendants' Memorandum of Law, but
instead relies upon a discussion ofFed.R.Civ. P. 42(a) found in 9A Wright & Miller's Fed. Prac. &
Proc. Civ. § 2383 (3d ed.), § 2383. Yet this section of the treatise does not even mention Fed.
R.Civ.P. 13(a). Indeed, Mr. Yalowitz's construction of Rule 42(a) would eviscerate Rule 13(a), as
any compulsory counterclaim could be brought as a separate action. I also note that Mr. Yalowitz's
attempt to rely upon the relatively short time between the filing of the two actions entirely ignores
the black letter law that the "first-to-file rule is used to determine whether a cause of action needs
to be adjudicated as a compulsory counterclaim ... , and provides that 'where there are two competing
lawsuits involving substantially the same issue, the first suit should have priority, absent the showing
of balance of convenience in favor of the second action, or unless there are special circumstances
which justify giving priority to the second. '" Internet Law Library, Inc. v. Southridge Capital
Mgmt., LLC, 208 F.R.D. 59, 64 (S.D. .Y. 2002) (R. Carter, D.J.) (Citations omitted).
espectfully yours,

Enclosure.
cc:

Kent Yalowitz, Esq. (via ECF and email; wi encl.)