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Case 2:15-cv-06573-RGK-PLA Document 48-1 Filed 09/06/16 Page 1 of 69 Page ID #:265

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DANIEL M. PETROCELLI (S.B. #97802)


dpetrocelli@omm.com
JEFFREY A. BARKER (S.B. #166327)
jbarker@omm.com
DAVID MARROSO (S.B. #211655)
dmarroso@omm.com
ESTEBAN RODRIGUEZ (S.B. #268789)
esrodriguez@omm.com
OMELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067-6035
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Lead Counsel for Defendants and Attorneys for
Defendants Top Rank, Inc., Robert Arum,
Todd duBoef, Emmanuel Pacquiao, Michael
Koncz, and Home Box Office, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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IN RE: PACQUIAO-MAYWEATHER
BOXING MATCH PAY-PER-VIEW
LITIGATION,

MDL No. 2:15-ml-02639-RGK


(PLAx)

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This document relates to:

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ALL CASES

DEFENDANTS MEMORANDUM
OF POINTS AND AUTHORITIES
IN SUPPORT OF MASTER
MOTION TO DISMISS ALL
COMPLAINTS

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[MDL No. 2639]

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The Hon. R. Gary Klausner


Hearing Date: None scheduled
Hearing Time: None scheduled
Courtroom:
850

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DEFS. MEM. OF P&A ISO MASTER
MOT. TO DISMISS ALL COMPLAINTS

Case 2:15-cv-06573-RGK-PLA Document 48-1 Filed 09/06/16 Page 2 of 69 Page ID #:266

TABLE OF CONTENTS

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I.

INTRODUCTION ........................................................................................... 1

II.

BACKGROUND ............................................................................................. 4

III.

LEGAL STANDARD ..................................................................................... 7

IV.

ALL 26 ACTIONS FAIL TO PLEAD A LEGALLY COGNIZABLE


INJURY ........................................................................................................... 7
A.
Plaintiffs Were Not Denied the Right to View or Show a
Fightthe Only Right Provided by Their Ticket and PPV Purchases .................................................................................................... 8

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B.

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V.

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VI.

Plaintiffs Only Had a Reasonable Expectation to See a Fight Between Opponents Cleared to Fight by the NSAC ............................... 12
THE COURT SHOULD DISMISS ALL 26 ACTIONS FOR FAILURE TO PLEAD FRAUD WITH PARTICULARITY UNDER RULE
9(B) ................................................................................................................ 15
A.
All Complaints Engage in Improper Group Pleading......................... 15
B.
All Complaints Lack the Details Required By Rule 9(b) ................... 16
ALL 26 ACTIONS FAIL TO PLEAD VIABLE CAUSES OF ACTION FOR ADDITIONAL, CLAIM-SPECIFIC REASONS ...................... 18
A.
The Statutory Consumer Fraud Claims Fail ....................................... 18
1.
All Plaintiffs Fail to Plead Actionable Omissions or Affirmative Misrepresentations .................................................... 19
a.
No Defendant Had a Duty to Publicly Disclose Information About Pacquiaos Health ............................... 19

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2.
3.

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The California UCL and CLRA Claims Fail ............................ 26


a.
Plaintiffs Fail to Plead a UCL Unlawful Claim.......... 27
b.

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b.
No Actionable Affirmative Misrepresentations ............. 22
All Plaintiffs Lack Statutory Standing Because They Fail
to Adequately Plead Causation or Reliance ............................. 24

4.

Plaintiffs Fail to Plead a UCL Unfair Claim .............. 27

c.
PPV Licenses Fall Outside the CLRAs Scope.............. 29
The Florida DUTPA Claims Fail ............................................. 29
a.
Plaintiffs Fail to Allege Deceptive Conduct in Florida ................................................................................... 29
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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF CONTENTS
(continued)

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Page

b.

5.

Plaintiffs Fail to Plead a Deceptive, Unfair, or Unconscionable Act ............................................................ 30


The Nevada DTPA and CFA Claims Fail ................................ 31

6.

The Michigan CPA Claims Fail ............................................... 32

7.

The New Jersey CFA Claims Fail ............................................ 32

8.

The New York DTPA Claims Fail ........................................... 34

9.

The Illinois CFA Claims Fail ................................................... 34

10.

The Tennessee CPA Claim Fails .............................................. 36


a.
The TCPA Expressly Bars Class Action Claims ........... 36

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11.

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12.

b.
Plaintiff Fails to Plead an Unfair or Deceptive Act ....... 37
The South Carolina UTPA Claim Fails .................................... 38

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The Texas DTPA Claims Fail .................................................. 40


a.
Plaintiffs Claims Fall Outside the TDTPAs Scope ..... 40

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b.

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B.
C.

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D.

Plaintiffs Plead No Deceptive or Unconscionable


Act .................................................................................. 41
The Fraudulent Concealment Claim Fails .......................................... 41
The Lanham Act Claim Fails .............................................................. 42
1.
The Commercial Plaintiffs Lack Statutory Standing ............... 42
2.
Plaintiffs Fail to Plead a False or Misleading Statement.......... 46
The Unjust Enrichment Claims Fail ................................................... 46

E.
The Conspiracy Claims Fail................................................................ 47
VII. CONCLUSION ............................................................................................. 50

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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF AUTHORITIES

Page(s)

Cases

Aberdeen v. Toyota Motor Sales, U.S.A.,


2009 WL 7715964 (C.D. Cal. June 23, 2009), revd on other
grounds, 422 F. Appx 617.................................................................................. 20

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Adamson v. Ortho-McNeil Pharm., Inc.,


463 F. Supp. 2d 496 (D.N.J. 2006)...................................................................... 23
Ahmed v. Hosting.com,
28 F. Supp. 3d 82 (D. Mass. 2014)...................................................................... 44
Aleksick v. 7-Eleven, Inc.,
205 Cal. App. 4th 1176 (2012) ...................................................................... 26, 27
Alexso, Inc. v. First Databank, Inc.,
2015 WL 5554005 (C.D. Cal. Sept. 21, 2015) .................................................... 45

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Anderson v. USAA Fed. Sav. Bank,


2013 WL 4776728 (D.S.C. Sept. 4, 2013) .......................................................... 39
Andre Strishak & Assocs. v. Hewlett Packard Co.,
752 N.Y.S.2d 400 (N.Y. App. Div. 2002)........................................................... 23
Arcand v. Brother Intl Corp.,
673 F. Supp. 2d 282 (D.N.J. 2009)................................................................ 19, 33
Ardis v. Cox,
431 S.E.2d 267 (S.C. 1993) ........................................................................... 19, 38

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Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................................................. 7
In re Auto. Parts Antitrust Litig.,
29 F. Supp. 3d 982 (E.D. Mich. 2014) ................................................................ 38
Avery v. State Farm Mut. Auto. Ins. Co.,
835 N.E.2d 801 (Ill. 2005)..................................................................................... 8
Backhaut v. Apple, Inc.,
74 F. Supp. 3d 1033 (N.D. Cal. 2014)................................................................... 8

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Banco Popular N. Am. v. Gandi,


184 N.J. 161 (2005) ............................................................................................. 49
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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF AUTHORITIES
(continued)
Page(s)
Bardin v. Daimlerchrysler Corp.,
136 Cal. App. 4th 1255 (2006) ...................................................................... 20, 28
Baron v. Pfizer, Inc.,
42 A.D. 3d 627 (N.Y. Sup. Ct. App. Div. 2007) ................................................... 8

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Bassam v. Bank of Am.,


2015 WL 4127745 (C.D. Cal. July 8, 2015) ................................................. 15, 16
Bearden v. Honeywell Intl Inc.,
2010 WL 3239285 (M.D. Tenn. Aug. 16, 2010) .......................................... 35, 36
Beaudreau v. Larry Hill Pontiac/Oldsmobile/GMC, Inc.,
160 S.W.3d 874 (Tenn. Ct. App. 2004) .............................................................. 37
Beder v. Cleveland Browns, Inc.,
717 N.E.2d 716 (Ohio App. 1998) ............................................................ 4, 10, 12
Begualg Inv. Mgmt. Inc. v. Four Seasons Hotel Ltd.,
2011 WL 4434891 (S.D. Fla. Sept. 23, 2011) ..................................................... 30
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ..................................................................................... passim
Berenz v. Diamond Road, Inc.,
2004 WL 5335150 (Ill. Cir. Ct. 2004) ................................................................. 12
Berg v. Access Grp., Inc.,
2014 WL 4812331 (E.D. Pa. Sept. 26, 2014)........................................................ 8
Bickett v. Buffalo Bills, Inc.,
122 Misc. 2d 880 (N.Y. Sup. Ct. Dec. 21, 1983) .................................................. 9
Bober v. Glaxo Wellcome Plc,
246 F.3d 934 (7th Cir. 2001) ............................................................................... 23
Boswell v. Barnum & Bailey,
185 S.W. 692 (Tenn. 1916) ................................................................................... 9
Bowers v. Fdration Intl de lAuto.,
461 F. Supp. 2d 855 (S.D. Ind. 2006), affd on narrower grounds,
489 F.3d 316 (7th Cir. 2007) ........................................................................ passim

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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF AUTHORITIES
(continued)
Page(s)
Boyd v. Angelica Textile Servs., Inc.,
2012 WL 2260235 (D.S.C. May 18, 2012) ......................................................... 49
Brod v. Sioux Honey Assn, Co-op.,
927 F. Supp. 2d 811 (N.D. Cal. 2013)................................................................. 21

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Bronson v. Johnson & Johnson, Inc.,


2013 WL 1629191 (N.D. Cal. Apr. 16, 2013) .................................................... 26
Brosnan v. Tradeline Solutions, Inc.,
2009 WL 1604572 (N.D. Cal. June 5, 2009) ...................................................... 15
Brownfield v. Bayer Corp.,
2009 WL 1953035 (E.D. Cal. July 6, 2009)........................................................ 26
Bulbman v. Nev. Bell,
108 Nev. 105 (1992) ...................................................................................... 23, 31
Burrows v. Purchasing Power, LLC,
2012 WL 9391827 (S.D. Fla. Oct. 18, 2012) ...................................................... 21
C.T. Charlton & Assocs., Inc. v. Thule, Inc.,
541 F. Appx 549 (6th Cir. 2013) .......................................................................... 8
Caires v. JP Morgan Chase Bank, N.A.,
880 F. Supp. 2d 288 (D. Conn. 2012) ................................................................... 8
Camacho v. Auto. Club of S. Cal.,
142 Cal. App. 4th 1394 (2006) ...................................................................... 27, 28
Castillo v. Tyson,
701 N.Y.S.2d 423 (NY. App. Div. 2000)..................................................... passim
Cel-Tech Commcns, Inc. v. L.A. Cellular Telephone Co.,
20 Cal. 4th 163 (1999) ......................................................................................... 27
Cervantes v. Countrywide Home Loans, Inc.,
656 F.3d 1034 (9th Cir. 2011) ............................................................................... 9
Charpentier v. L.A. Rams Football Co., Inc.,
75 Cal. App. 4th 301 (1999) ................................................................................ 12
Chiste v. Hotels.com L.P.,
756 F. Supp. 2d 382 (S.D.N.Y. 2010) ........................................................... 21, 34
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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF AUTHORITIES
(continued)
Page(s)
Cirzoveto v. AIG Annuity Ins. Co.,
625 F. Supp. 2d 623 (W.D. Tenn. 2009) ....................................................... 19, 37
Cleary v. Philip Morris Inc.,
656 F.3d 511 (7th Cir. 2011) ........................................................................... 8, 47

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In re Clorox Consumer Litig.,


2013 WL 3967334 (N.D. Cal. July 31, 2013) ............................................... 29, 34
Companion Property v. U.S. Bank Natl Assn,
2015 WL 7568613 (D.S.C. Nov. 24, 2015) ........................................................ 39
Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc.,
911 F.2d 242 (9th Cir. 1990) ............................................................................... 23
Corazon v. Aurora Loan Srvs., LLC,
2011 WL 1740099 (N.D. Cal. May 5, 2011) ................................................ 15, 16
Czarnecki v. Roller,
726 F. Supp. 832 (S.D. Fla. 1989) ....................................................................... 47
Davis v. HSBC Bank Nev., N.A.,
691 F.3d 1152 (9th Cir. 2012) ............................................................................. 23
District 1199P Health & Welfare Plan v. Janssen, L.P.,
784 F. Supp. 2d 508 (D.N.J. 2011)...................................................................... 32
Donachy v. Intrawest U.S. Holdings, Inc.,
2012 WL 869007 (D.N.J. Mar. 14, 2012) ........................................................... 47
Druyan v. Jagger,
508 F. Supp. 2d 228 (S.D.N.Y. 2007) ................................................................. 20
Ellis v. Smith Grading and Paving,
366 S.E.2d 12 (S.C. Ct. App. 1988) ...................................................................... 8
F.T.C. v. Stefanchik,
559 F.3d 924 (9th Cir. 2009) ............................................................................... 21
Falk v. Gen. Motors Corp.,
496 F. Supp. 2d 1088 (N.D. Cal. 2007)............................................................... 21
Five for Entmt S.A. v. Rodriguez,
877 F. Supp. 2d 1321 (S.D. Fla. 2012)................................................................ 29
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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF AUTHORITIES
(continued)
Page(s)
In re Ford Tailgate Litig.,
2014 WL 1007066 (N.D. Cal. Mar. 12, 2014) .............................................. 36, 46
Garrett v. RentGrow, Inc.,
2005 WL 1563162 (N.D. Ill. July 1, 2005) ......................................................... 35

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Giercyk v. Natl Union Fire Ins. Co. of Pittsburgh,


2015 WL 7871165 (D.N.J. Dec. 4, 2015) ........................................................... 46
Glazer v. Dress Barn, Inc.,
873 A.2d 929 (2005)................................................................................ 18, 19, 22
Gomez v. Carmax Auto Superstores Cal., LLC,
2015 WL 350219 (C.D. Cal. Jan. 22, 2015)........................................................ 18
Goshen v. Mut. Life Ins. Co. of N.Y.,
774 N.E.2d 1190 (N.Y. Ct. App. 2002)............................................................... 34
Goverau v. Wellish,
2012 WL5215098 (D. Nev. Oct. 19, 2012) ........................................................... 8
Gregory v. Albertsons Inc.,
104 Cal. App. 4th 845 (2002) ........................................................................ 27, 28
Hackworth v. Greywood at Hammett, LLC,
682 S.E.2d 871 (S.C. Ct. App. 2009) ............................................................ 47, 49
Hall v. Sea World Entmt, Inc.,
2015 WL 9659911 (S.D. Cal. Dec. 23, 2015) .............................................. passim
Health Promotion Specialists, LLC v. Bd. of Dentistry,
743 S.E.2d 808 (S.C. 2013) ....................................................................... 8, 38, 39
Hendricks v. DSW Shoe Warehouse, Inc.,
444 F. Supp. 2d 775 (W.D. Mich. 2006) ................................................... 8, 18, 32
Hodsdon v. Mars, Inc.,
2016 WL 627383 (N.D. Cal. Feb. 17, 2016) ....................................................... 26
HW Aviation LLC v. Royal Sons, LLC,
2008 WL 4327296 (M.D. Fla. Sept. 17, 2008) ............................................. 23, 30
In re Hydroxycut Mktg. and Sales Practices Litig.,
801 F. Supp. 2d 993 (S.D. Cal. 2011) ................................................................. 15
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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF AUTHORITIES
(continued)
Page(s)
In re Hydroxycut Mktg. and Sales Practices Litig.,
2010 WL 2839480 (S.D. Cal. July 20, 2010) ................................................ 25, 34
In re Hydroxycut Mktg. and Sales Practices Litig.,
299 F.R.D. 648 (S.D. Cal. 2014) ................................................................... 18, 36

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In re Hydroxycut Mktg. and Sales Practices Litig.,


2010 WL 1734948 (S.D. Cal. April 26, 2010) .................................................... 34
Interallianz Bank AG v. Nycal Corp.,
1995 WL 406112 (S.D.N.Y. July 7, 1995).......................................................... 20
J.M. v. E. Greenwich Tp. Bd. of Educ.,
2008 WL 4117971 (D.N.J. Aug. 27, 2008) ......................................................... 48
Jacksonville Bulls Football, Ltd. v. Blatt,
535 So. 2d 626 (Fla. Dist. Ct. App. 1988)............................................................. 9
Janda v. T-Mobile USA, Inc.,
378 F. Appx 705 (9th Cir. 2010) ........................................................................ 23
Janney v. Mills,
944 F. Supp. 2d 806 (N.D. Cal. 2013)................................................................. 18
Jeffrey H. v. Imai, Tadlock & Kenney,
85 Cal. App. 4th 345 (2000), overruled in part on other grounds,
Jacob B. v. Cty. of Shasta, 40 Cal. 4th 938 (2007) ............................................. 20

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Johnson v. Columbia Props. Anchorage, LP,


437 F.3d 894 (9th Cir. 2006) ................................................................................. 9
K & N Engg, Inc. v. Spectre Performance,
2011 WL 4387094 (C.D. Cal. Sept. 20, 2011) .................................................... 45
Kearns v. Ford Motor Co.,
567 F.3d 1120 (9th Cir. 2009) ................................................................... 7, 15, 17
Kelly v. Dent Theaters, Inc.,
21 S.W.2d 592 (Tex. Ct. App. 1929) .................................................................... 9
Khoury v. Malys of Cal., Inc.,
14 Cal. App. 4th 612 (1993) ................................................................................ 26

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DEFS. MEM. OF P&A ISO MASTER


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TABLE OF AUTHORITIES
(continued)
Page(s)
Kitzes v. Home Depot, U.S.A., Inc.,
872 N.E.2d 53 (Ill. App. Ct. 2007) ...................................................................... 21
Kussy v. Home Depot USA,
2006 WL 3447146 (E.D. Mich. Nov. 28, 2006) ................................................. 23

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L.A. Meml Coliseum Commn v. Insomniac, Inc.,


233 Cal. App. 4th 803 (2015) .............................................................................. 22
Lacoff v. Buena Vista Pub., Inc.,
705 N.Y.S.2d 183 (N.Y. Sup. Ct. 2000)........................................................ 23, 34
Lateef v. Pharmavite, LLC,
2013 WL 1499029 (N.D. Ill. April 10, 2013) ............................................... 23, 35
Lazebnik v. Apple, Inc.,
2014 WL 4275008 (N.D. Cal. Aug. 29, 2014) .............................................. 29, 31
LeBlanc v. Bank of Am.,
2013 WL 3146829 (W.D. Tenn. June 18, 2013) ................................................. 38
Lexmark Intl, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377 (2014) ...................................................................... 42, 43, 44, 45
Lighthouse Grp., LLC v. Strauss,
2016 WL 562100 (D.S.C. Feb. 12, 2016) ........................................................... 39
Locus Telecommcns, Inc. v. Talk Glob., LLC,
2014 WL 4271635 (D.N.J. Aug. 28, 2014) ................................................... 42, 43
Maine Springs, LLC v. Nestl Waters N. Am., Inc.,
2015 WL 1241571 (D. Me. Mar. 18, 2015) ........................................................ 45
Mallory v. McCarthy & Holthus, LLP,
2015 WL 2185413 (D. Nev. May 11, 2015) ................................................. 19, 31
Malsom v. Match.com, L.L.C.,
540 F. Appx 412 (5th Cir. 2013) ........................................................................ 40
In re Managed Care Litig.,
2009 WL 7848517 (S.D. Fla. 2009) .................................................................... 48
Mancina v. Goodell,
2013 WL 393041 (E.D. La. Jan. 30, 2013) ........................................... 3, 9, 11, 12
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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF AUTHORITIES
(continued)
Page(s)
Mapal, Inc. v. Atarsia,
147 F. Supp. 3d 670 (E.D. Mich. Nov. 30, 2015) ............................................... 47
Mayer v. Belichick,
605 F.3d 223 (3d Cir. 2010) ......................................................................... passim

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McKinniss v. Sunny Delight Beverages Co.,


2007 WL 4766525 (C.D. Cal. Sept. 4, 2007) ................................................ 23, 46
McLaughlin v. LVNV Funding, LLC,
971 F. Supp. 2d 796 (N.D. Ill. 2013)................................................................... 25
McManus v. Sears Roebuck and Co.,
2003 WL 22024238 (Tex. App. Aug. 28, 2003) ................................................... 8
Mejia v. EMC Mortg. Corp.,
2012 WL 367364 (C.D. Cal. Feb. 2, 2012) ......................................................... 48
Mendez v. Oakmont Mortg. Co., Inc.,
2010 WL 4818000 (S.D. Cal. Nov. 22, 2010) .................................................... 41
Menendez v. Beech Acceptance Corp.,
521 So. 2d 178 (Fla. Ct. App. 1988) ................................................................... 49
Miller v. Pittsburgh Athletic Co.,
91 Pa. Super. 241 (1927) ....................................................................................... 9
Morgan v. HSBC Bank USA, Natl Assn,
2015 WL 3888412 (D.S.C. June 24, 2015) ......................................................... 39
Mowett v. JPMorgan Chase Bank,
2016 WL 1259091 (E.D. Mich. Mar. 31, 2016).................................................. 47
N. Am. Clearing, Inc. v. Brokerage Comput. Sys., Inc.,
666 F. Supp. 2d 1299 (M.D. Fla. 2009) .............................................................. 30
N.J. Citizen Action v. Schering-Plough Corp.,
842 A.2d 174 (N.J. Super. Ct. App. Div. 2003) .................................................... 8
Navarro v. Block,
250 F.3d 729 (9th Cir. 2001) ................................................................................. 7
Norcia v. Samsung Telecomms. Am., LLC,
2015 WL 4967247 (N.D. Cal. Aug. 20, 2015) .................................................... 27
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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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TABLE OF AUTHORITIES
(continued)
Page(s)
Ocaso, S.A., Comp. De Seguros Y Reaseguros v. P.R. Mar. Shipping
Auth.,
915 F. Supp. 1244 (D.P.R. 1996) .............................................................. 8, 41, 46

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Olson v. Accessory Controls & Equip. Corp.,


254 Conn. 145 (Conn. 2000) ............................................................................... 20
Estate of Oshinsky v. N.Y. Football Giants, Inc.,
2011 WL 383880 (D.N.J. Feb. 2, 2011) .............................................................. 12
Parenteau v. Gen. Motors, LLC,
2015 WL 1020499 (C.D. Cal. Mar. 5, 2015) (Klausner, J.) ..................... 7, 18, 26
Percha v. Detroit Lions, Inc.,
2003 WL 23018757 (Mich. Ct. App. Dec. 23, 2003) ........................................... 9

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Perret v. Wyndham Vacation Resorts, Inc.,


889 F. Supp. 2d 1333 (S.D. Fla. 2012) .......................................................... 23, 30
Peter Kiewit Sons, Inc. v. Wall St. Equity Grp., Inc.,
2014 WL 4843674 (D. Neb. Sept. 29, 2014), affd 809 F.3d 1018
(8th Cir. 2016) ..................................................................................................... 44
Petrich v. MCY Music World, Inc.,
862 N.E.2d 1171 (Ill. App. Ct. 2007) .................................................................... 9

18
19
20
21
22
23
24

PHG Tech., LLC v. St. John Co., Inc.,


459 F. Supp. 2d 640 (M.D. Tenn. 2006) ............................................................... 8
Picus v. Wal-Mart Stores, Inc.,
256 F.R.D. 651 (D. Nev. 2009) ........................................................................... 24
Pitts v. Jackson Natl Life Ins. Co.,
352 S.C. 319 (S.C. Ct. App. 2002) ...................................................................... 22
PNC Bank, N.A. v. Goyette Mech. Co.,
88 F. Supp. 3d 775 (E.D. Mich. 2015) ................................................................ 49

25
26
27
28

POM Wonderful LLC v. Coca-Cola Co.,


134 S. Ct. 2228 (2014) ........................................................................................ 42
Presidio Enters., Inc. v. Warner Bros. Dist. Corp.,
784 F.2d 674 (5th Cir. 1986) ............................................................................... 24
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2
3
4
5

TABLE OF AUTHORITIES
(continued)
Page(s)
Ex parte Quarg,
149 Cal. 79 (1906) ................................................................................................. 9
Resendez v. Scottsdale Ins. Co.,
2016 WL 756576 (W.D. Tex Feb. 26. 2016) ...................................................... 22

6
7
8
9
10
11

Reyna v. Wells Fargo Bank, N.A.,


2011 WL 2690087 (D. Nev. July 11, 2011) .......................................................... 8
Rice v. Sunbeam Prods., Inc.,
2013 WL 146270 (C.D. Cal. Jan. 7, 2013)............................................................ 7
Robinson v. Match.com, L.L.C.,
2012 WL 5007777 (N.D. Tex. Oct. 17, 2012), affd sub nom.
Malsom, 540 F. Appx 412 ............................................................................ 40, 41

12
13
14
15
16
17
18

Robinson v. Toyota Motor Credit Corp.,


201 Ill. 2d 403 (2002) .......................................................................................... 35
Rockford Meml Hosp. v. Havrilesko,
858 N.E.2d 56 (Ill. 2006)..................................................................................... 19
Rodio v. Smith,
587 A.2d 621 (N.J. 1991) .................................................................................... 32
Roeder v. Atl. Richfield Co.,
2011 WL 4048515 (D. Nev. Sept. 8, 2011) ........................................................ 22

19
20
21
22
23
24
25
26
27

Rojas v. Gen. Mills, Inc.,


2013 WL 5568389 (N.D. Cal. Oct. 9, 2013) ....................................................... 46
Rooney v. Cumberland Packing Corp.,
2012 WL 1512106 (S.D. Cal. Apr. 16, 2012) ..................................................... 23
Russo v. Fink,
87 So. 3d 815 (Fla. Dist. Ct. App. 2012) ............................................................. 47
Saavedra v. Eli Lilly and Co.,
2013 WL 3148923 (C.D. Cal. June 13, 2013)....................................................... 9
Saltire Indus., Inc. v. Waller, Lansden, Dortch & Davis, PLLC,
491 F.3d 522 (6th Cir. 2007) ............................................................................... 22

28

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2
3
4
5

TABLE OF AUTHORITIES
(continued)
Page(s)
In re San Juan Dupont Plaza Hotel Fire Litig.,
687 F. Supp. 716 (D.P.R. 1988) .......................................................................... 41
Sater v. Chrysler Grp. LLC,
2015 WL 736273 (C.D. Cal. Feb. 20, 2015) ....................................................... 46

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Schwarz v. Bear Stearns Cos., Inc.,


266 A.D.2d 133 (N.Y. App. Div. 1999) .......................................................... 9, 34
Scripps Clinic v. Superior Court,
108 Cal. App. 4th 917 (2003) ........................................................................ 27, 28
Searle v. Wyndham Intl, Inc.,
102 Cal. App. 4th 1327 (2002) ............................................................................ 20
Seko Air Freight v. Transworld Sys., Inc.,
22 F.3d 773 (7th Cir. 1994) ................................................................................. 12
Sergeant Oil & Gas Co. v. Natl Maint. & Repair, Inc.,
861 F. Supp. 1351 (S.D. Tex. 1994).................................................................... 21
Shady Grove Orthopedic Associates v. Allstate Insurance Co.,
559 U.S. 393 (2010) ...................................................................................... 36, 38
Shady Grove. Stalvey v. Am. Bank Holdings, Inc.,
2013 WL 6019320 (D.S.C. Nov. 13, 2013) ........................................................ 38
Shakeri v. ADT Sec. Servs., Inc.,
816 F.3d 283 (5th Cir. 2016) ......................................................................... 39, 40
Slebodnik v. Reynolds and Reynolds Co.,
2014 WL 6609132 (D.N.J. Nov. 20, 2014) ....................................... 25, 26, 32, 33
In re Sony Gaming Networks and Customer Data Sec. Breach Litig.,
996 F. Supp. 2d 942 (S.D. Cal. 2014) ................................................. 7, 15, 24, 25
Soto v. Sky Union, LLC,
2016 WL 362379 (N.D. Ill. Jan. 29, 2016) ......................................................... 46
Southington Sav. Bank v. Rodgers,
40 Conn. App. 23 (1995) ............................................................................... 18, 21
Southland Sod Farms v. Stover Seed Co.,
108 F.3d 1134 (9th Cir. 1997) ......................................................................... 8, 45
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4
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TABLE OF AUTHORITIES
(continued)
Page(s)
Springer v. Pelissier,
2011 WL 2601895 (D.S.C. July 1, 2011)............................................................ 49
Steele v. Goddard,
2013 WL 3013671 (Tex. Ct. App. June 13, 2013) ........................................ 18, 41

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12
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14
15
16
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20
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24
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28

Stefan v. Singer Island Condos. Ltd.,


2009 WL 426291 (S.D. Fla. Feb. 20, 2009) ........................................................ 24
Stern v. Cleveland Browns Football, Inc.,
1996 WL 761163 (Oh. Ct. App. Dec. 20, 1996) ................................................. 12
Strauss v. Long Islands Sports, Inc.,
60 A.D. 2d 501 (N.Y. App. Div. Jan. 9, 1978) ................................................... 12
Stutman v. Chemical Bank,
731 N.E.2d 608 (N.Y. Ct. App. 2000)................................................................. 21
Swartz v. KPMG LLP,
476 F.3d 756 (9th Cir. 2007) ............................................................................... 15
Tait v. BSH Home Appliances Corp.,
2011 WL 1832941 (C.D. Cal. May 12, 2011)..................................................... 36
In re Target Corp. Customer Data Sec. Breach Litig.,
66 F. Supp. 3d 1154 (D. Minn. 2014) ........................................................... 36, 38
Taylor v. Kochanowski,
2010 WL 2696675 (Mich. App. July 8, 2010) .................................................... 47
In re TD Bank, N.A.,
2015 WL 8493979 (D.S.C. Dec. 10, 2015) ......................................................... 38
Tucker v. Sierra Builders,
180 S.W.3d 109 (Tenn. App. 2005) ................................................................ 8, 37
Vess v. Ciba-Geigy Corp.,
317 F.3d 1097 (9th Cir. 2003) ............................................................................. 17
Viches v. MLT, Inc.,
124 F. Supp. 2d 1092 (E.D. Mich. 2000) ...................................................... 23, 32
Viking Yacht Co., Inc. v. Composite One LLC,
385 F. Appx 195 (3d Cir. 2010) ......................................................................... 33
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TABLE OF AUTHORITIES
(continued)

2
3
4
5

Page(s)
Virgilio v. Ryland Grp., Inc.,
680 F.3d 1329 .................................................................................................. 8, 19
Von Koenig v. Snapple Beverage Corp.,
2011 WL 43577 (E.D. Cal. Jan. 6, 2011) ............................................................ 18

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7
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12
13
14
15
16
17
18
19
20
21
22

Warren v. Warrior Golf Capital, LLC,


126 F. Supp. 3d 988 (E.D. Tenn. 2015) .............................................................. 21
Waters v. Howard Sommers Towing, Inc.,
2011 WL 1375576 (C.D. Cal. Apr. 11, 2011) ..................................................... 41
Wells Fargo Bank v. Crowley,
2014 WL 11370437 (N.D. Ga. Feb. 20, 2014).................................................... 49
Wilson v. Hewlett-Packard Co.,
668 F.3d 1136 (9th Cir. 2012) ............................................................................. 21
Wirth v. Mars Inc.,
2016 WL 471234 (C.D. Cal. Feb. 5, 2016) ......................................................... 21
Woods v. Google, Inc.,
889 F. Supp. 2d 1182 (N.D. Cal. 2012)............................................................... 28
Yingst v. Novartis AG,
63 F. Supp. 3d 412 (D.N.J. 2014)........................................................................ 33
Zine v. Chrysler Corp.,
600 N.W.2d 384 (Mich. Ct. App. 1999).............................................................. 32
Zodda v. Natl Union Fire Ins. Co. of Pittsburgh, Pa.,
2014 WL 1577694 (D.N.J. Apr. 21, 2014).......................................................... 47
Rules

23

Rule 12(b)(6)............................................................................................................... 7
24
25
26

Rule 9(b) ............................................................................................................ passim


Statutes

27

815 ILCS 505/2.................................................................................................. 5, 35

28

815 ILCS 505/10a .................................................................................................. 24


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TABLE OF AUTHORITIES
(continued)

Page(s)
15 U.S.C. 1125(a)(1) ............................................................................................. 45

Cal. Bus. & Prof. Code 17200 ................................................................................. 5

Cal. Bus. & Prof. Code 17204 ............................................................................... 24

6
7

Cal. Bus. & Prof. Code 17500 ............................................................................... 26


Cal. Civ. Code 1750................................................................................................. 5

8
9
10
11

Cal. Civ. Code 1761(a) .................................................................................... 28, 29


Cal. Civ. Code 1770(a) .......................................................................................... 28
Cal. Civ. Code 1780(a) .......................................................................................... 24

12

Conn. Gen. Stat. 42-110a......................................................................................... 5

13

Conn. Gen. Stat. 42-110b(a) .................................................................................. 18

14

Conn. Gen. Stat. 42-110g(a) .................................................................................. 24

15

Fla. Stat. 501.201 ..................................................................................................... 5

16

Fla. Stat. 501.204(1) .............................................................................................. 30

17

Fla. Stat. 501.211(2) .............................................................................................. 24

18
19
20

Mich. Comp. Laws 445.901 .................................................................................... 5


Mich. Comp. Laws 445.903(1) .............................................................................. 20
Mich. Comp. Laws 445.903(cc) ............................................................................ 32

21
22
23

Mich. Comp. Laws 445.903(s) ........................................................................ 31, 32


Mich. Comp. Laws 445.911 .................................................................................. 24

24

N.J. Stat. Ann. 56:8-1 .............................................................................................. 5

25

N.J. Stat. Ann. 56:8-2 ...................................................................................... 20, 32

26

N.J. Stat. Ann. 56:8-19 .......................................................................................... 24

27

N.Y. Gen. Bus. Law 349 ................................................................................... 5, 34

28

N.Y. Gen. Bus. Law 349(h) ................................................................................... 24


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TABLE OF AUTHORITIES
(continued)

Page(s)
Nev. Rev. Stat. 41.600 ............................................................................................. 5

Nev. Rev. Stat. 41.600(1) ...................................................................................... 31

Nev. Rev. Stat. 41.600(2) ...................................................................................... 31

6
7

Nev. Rev. Stat. 41.600(2)(e) .................................................................................. 24


Nev. Rev. Stat. 598.0915 ......................................................................................... 5

8
9
10
11

Nev. Rev. Stat. 598.0915(5) .................................................................................. 31


Nev. Rev. Stat. 598.0915(7) .................................................................................. 31
Nev. Rev. Stat. 598.0915(9) .................................................................................. 31

12

Nev. Rev. Stat. 598.0915(15) ................................................................................ 31

13

Nev. Rev. Stat. 598.0923(2) ............................................................................ 21, 31

14

S.C. Code Ann. 39-5-10 .......................................................................................... 5

15

S.C. Code Ann. 39-5-20(a) .................................................................................... 38

16

S.C. Code Ann. 39-5-140(a) ............................................................................ 24, 38

17

Tenn. Code Ann. 47-18-101 .................................................................................... 5

18
19
20

Tenn. Code Ann. 47-18-104(b)(2) ......................................................................... 37


Tenn. Code Ann. 47-18-104(b)(3) ......................................................................... 37
Tenn. Code Ann. 47-18-104(b)(5) ......................................................................... 37

21
22
23

Tenn. Code Ann. 47-18-104(b)(7) ......................................................................... 37


Tenn. Code Ann. 47-18-104(b)(9) ......................................................................... 37

24

Tenn. Code Ann. 47-18-104(b)(21)....................................................................... 37

25

Tenn. Code Ann. 47-18-109(a)(1) ................................................................... 24, 35

26

Tex. Bus. & Com. Code 17.41 ................................................................................ 5

27

Tex. Bus. & Com. Code 17.46(b)(9) ..................................................................... 41

28

Tex. Bus. & Com. Code 17.46(b)(24) ................................................................... 41


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TABLE OF AUTHORITIES
(continued)

Page(s)
Tex. Bus. & Com. Code 17.50(a) .......................................................................... 24

Tex. Bus. & Comm. Code 17.45(5)....................................................................... 41

Regulations

6
7

Fl. Admin. Code 61K1-1.004(3)(a) ....................................................................... 13


N.J. Admin. Code 13:46-12A.4(c) ........................................................................ 13

8
9
10
11

N.Y. Uncon. L. 8925 ............................................................................................. 13


Nev. Admin. Code 467.545 ................................................................................... 13
Nev. Admin. Code 467.562 ................................................................................... 13

12

Nev. Admin. Code 467.885 ................................................................................... 14

13

Secondary Sources

14

Blacks Law Dictionary (10th ed. 2014) .................................................................. 32

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17
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I.

INTRODUCTION
As a matter of law, each of the 26 actions in MDL No. 2639 fails to allege any

viable claim against any defendant. The plaintiffs (Plaintiffs) purport to represent

putative classes of persons who bought tickets to the fight events on May 2, 2015,

persons who bought the pay-per-view telecast of those events (PPV), or commer-

cial closed-circuit distributors of those events (CC). They seek a refund of their

ticket and telecast payments because one of the fighters experienced a shoulder inju-

ry during training and did not perform as well as Plaintiffs expected. But the unal-

terable legal truth is that Plaintiffs received exactly what they paid foran oppor-

10

tunity to see the fight card that night, regardless of whether the fights were good

11

or bad, whether the participants were 100% healthy, or whether Plaintiffs would

12

have purchased anything had they been told one fighter had injured his shoulder in

13

training. On this bedrock legal principle, courts consistently reject on the pleadings

14

similar disappointed fan cases. This critical legal deficiency is inherent in the case

15

itself; it cannot be fixed by amendment. Plaintiffs inability to allege any legally

16

cognizable injury, along with a host of additional pleadings infirmities, require that

17

every action in this MDL be dismissed with prejudice.

18

For purposes of this motion, we accept the core facts as pled. On May 2,

19

2015, after years of circling each other in the media, two all-time great fighters

20

squared off in the boxing ring. Manny Pacquiao, the only 8-division champion in

21

history, and Floyd Mayweather, the undefeated defensive wunderkind, headlined a

22

boxing card that featured another world championship contest and several other

23

bouts. Those who bought tickets to the live event or watched the PPV/CC telecast

24

saw Vasyl Lomachenko earn a spectacular knockout victory and then witnessed Leo

25

Santa Cruz win a hard-fought 10-round decision. In the main event (the Fight),

26

fans saw Pacquiao and Mayweather go toe-to-toe for 12 full rounds. After 36

27

minutes of pugilistic action, Mayweather was awarded a unanimous decision,

28

though Pacquiao won a third of the rounds (4/12) on two judges scorecards.
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After the Fight, Pacquiao and others stated he had injured his shoulder during

1
2

training camp and he had seen orthopedic specialists who diagnosed, treated, and

cleared him to fight. They also explained that the Nevada State Athletic Commission

was apprised of Pacquiaos injury at least three hours before the Fight, examined

him, and deemed him fit to enter the ring.


Law firms pounced almost immediately, filing a cascade of putative class ac-

6
7

tion lawsuitsover 40asserting that plaintiff-fans are entitled to compensation.

According to Plaintiffs, the DefendantsPacquiao, his advisor Michael Koncz,

promoter Top Rank, Inc. (Top Rank) (and two of its executives), Home Box Of-

10

fice, Inc. (HBO), and Mayweather and his company, Mayweather Promotions

11

LLC (the Mayweather Defendants)led fans to believe they would see the Fight

12

of the Century but the match did not live up to its billing because of a supposed

13

lackluster performance by Pacquiao.1 E.g., Cal. Compl. 137. For every cause of

14

action, Plaintiffs advance the same principal legal theory:

15

[a] Defendants (allegedly) were aware that Pacquiao injured his shoulder during training camp, e.g., id. 3, 68;

16

[b] Defendants (allegedly) had a legal duty to disclose to the public that
Pacquiao had injured his shoulder but they failed to do so, e.g., id. 152;

17
18

[c] Plaintiffs (allegedly) paid money for the opportunity to watch the Fight,
either live (by ticket) or on television (by PPV or CC), without knowing
about Pacquiaos training injury and recuperation, e.g., id. 32;

19
20

[d] Had Defendants disclosed that Pacquiao had injured his shoulder, Plaintiffs (allegedly) would not have paid to see the fight, e.g., id. 33.

21
22

This theory suffers from the same critical failing that defeated every other dis-

23
24

appointed fan case: Plaintiffs have not alleged, and cannot allege, a legally cogniza-

25

ble injury. One who purchases a ticket to see a sporting event live or on television

26

buys nothing more than a revocable license to view the event at the scheduled

27
28

This motion is brought on behalf of all Defendants except the Mayweather Defendants, who move separately to dismiss Plaintiffs complaints.
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time and place. Mayer v. Belichick, 605 F.3d 223, 231 (3d Cir. 2010). Plaintiffs ad-

mit, as they must, they saw the entire boxing card that night, including the Fight.

Every Plaintiff therefore got exactly what he, she, or it paid forand, thus, suffered

no legally cognizable injury. This license approach and lack of injury analysis

have for some time, been followed throughout the United States and in other com-

mon law jurisdictions throughout the world. Id. For example:

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Boxing. In Castillo v. Tyson, plaintiffs sought a refund for tickets and PPV
fees because boxer Mike Tyson allegedly formulated a scheme and had a
premeditated plan to be disqualified rather than suffer a potentially careerending defeat. New Yorks Appellate Division affirmed the dismissal because plaintiffs received what they paid for, namely, the right to view
whatever event transpired. 268 A.D.2d 336, 337 (NY. App. Div. 2000).
Football. In Mayer, fans sought damages under New Jersey consumer fraud
laws (and other theories) alleging that games held between the New York
Jets and New England Patriots were not played fairly and honestly because the Patriots had secretly taped the Jets signals. The district court dismissed, finding that the plaintiff there suffered no legally cognizable injury
because fans possessed nothing more than a contractual right to a seat from
which to watch an NFL game between the Jets and Patriots, and this right
was clearly honored. The plaintiffs assertion that fans would not have
bought tickets had the Patriots or their coach disclosed the secret taping was
legally meaningless. The Third Circuit affirmed. 605 F.3d at 231; accord
Mancina v. Goodell, 2013 WL 393041, at *1-3 (E.D. La. Jan. 30, 2013)
(adopting in full the reasoning of Mayer, including that plaintiffs ticket
only grant[ed] him the right of entry and seating).
Formula One. In Bowers v. Fdration Intl de lAutomobile, although
twenty cars were scheduled to race, fourteen did not participate after it was
discovered that a flaw in their tires rendered them dangerous for use at full
speed on one part of the track. When [d]isappointed fans sued, seeking
their expenses in attending and viewing the race, the district court dismissed the suit. The Seventh Circuit affirmed, noting that while the six-car
race may have been less rich, interesting or challenging than a race with
more cars, the plaintiffs got [to witness] a race and, thus, suffered no legally cognizable injury. 489 F.3d 316, 316-19 & 322 (7th Cir. 2007).

27

There is not a single case from any jurisdiction where a class of sports fans

28

has been allowed to proceed with claims based on allegedly undisclosed injuries,
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rules violations, secret schemes to cheat, or the like. Accepting Plaintiffs core lia-

bility theory would require this Court to make sweeping new law. But, as one court

warned when rejecting a similar theory, doing so would lead to chaos, as it would

enable any ticket holder not satisfied with the performance to sue. Beder v. Cleve-

land Browns, Inc., 717 N.E.2d 716, 721 (Ohio Ct. App. 1998). Courts would be

awash with cases alleging fraud when, for instance, NFL quarterback Tom Brady

throws an interception due to a cut on his hand that happened earlier that week but

was never mentioned; or Dodgers pitcher Clayton Kershaw gives up four runs be-

cause his back flared up in a bullpen session a few days earlier and he told only his

10

doctor; or NBA star Steph Curry misses a game-winning three-pointer because he

11

sprained his ankle in practice and told no one; or an understudy appears in a play

12

when a scheduled performer fell ill a few days before. There is no basis, logic, or

13

policy for such a dramatic expansion of the law.

14

Numerous additional and independent bases also exist for dismissing all cases

15

in their entirety, certain causes of action specifically, and certain defendants. Each of

16

these grounds is discussed in detail in Sections V and VI, below. However, because

17

injury is an indispensable element of every cause of action and because no Plaintiff

18

alleges or can allege a legally cognizable injury, the Court can and should dismiss

19

all 26 cases with prejudice based on the grounds set forth in Section IV.2

20

II.

BACKGROUND

21

This MDL consists of 26 putative class actions filed in 13 jurisdictions (12

22

states and Puerto Rico), which are now consolidated in 15 complaints (the Com-

23

plaints). All Complaints assert largely identical allegations based on similar legal

24

theories against Defendants.3 The Complaints, however, vary in the putative classes

25
26
27
28

Defendants dispute many of Plaintiffs allegations and have other legal and factual
defenses, including, among others, that any such claims are not the proper subject of
class-wide treatment and may need to be arbitrated. Defendants hereby assert these
pleading defenses pursuant to the Courts Case Management Order dated July 7,
2016, without prejudice and without waiving any other arguments or defenses.
3
For ease of discussion, Defendants refer to the various complaints by their originat-4-

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and causes of action alleged. Specifically:


PPV Complaints: Thirteen Complaints are jurisdiction-specific and assert

claims on behalf of statewide putative classes of purchasers of the residential PPV

telecast of the Fight. The Pennsylvania Complaint asserts an unjust enrichment

claim. Penn. Compl. 179-84. The Puerto Rico Complaint asserts unjust enrich-

ment and fraudulent concealment claims. P.R. Compl. 179-200. The others assert

claims under consumer fraud statutes, namely: (1) Californias Unfair Competition

Law (UCL) and Legal Remedies Act (CLRA); (2) Connecticuts Unfair Trade

Practices Act (CUTPA); (3) Floridas Deceptive and Unfair Trade Practices Act

10

(FDUTPA); (4) Illinoiss Consumer Fraud Act (ICFA); (5) Michigans Con-

11

sumer Protection Act (MCPA); (6) Nevadas Deceptive Trade Practices Act

12

(NDTPA) and CFA (NCFA); (7) New Jerseys CFA (NJCFA); (8) New

13

Yorks DTPA (NYDTPA); (9) South Carolinas UTPA (SCUTPA); (10) Ten-

14

nessees CPA (TCPA); and (11) Texass DTPA (TDTPA).4 Nine of these Com-

15

plaints also assert unjust enrichment claims.5 Four assert conspiracy claims.6

16

All of these claims are premised on the theory that, after Pacquiao injured his

17

shoulder during training for the Fight, (1) Defendants purportedly were required to

18

(but did not) disclose the nature and extent of the injury to the public, Cal. Compl.

19
20
21
22
23
24
25
26
27
28

ing jurisdiction. For reference purposes, Exhibit 1 hereto provides a list of the
states/territories at issue, the full name of the complaint(s) from each, and the applicable case number. Further, to avoid duplication, Defendants cite only to the California Complaint when discussing identical allegations made in all Complaints.
4
See Cal. Compl. 183-265 (Cal. Bus. & Prof. Code 17200, Cal. Civ. Code
1750); Conn. Compl. 178-97 (Conn. Gen. Stat. 42.-110a); Fla. Compl. 181212 (Fla. Stat. 501.201); Ill. Compl. 180-90 (815 ILCS 505/2); Mich. Compl.
178-214 (Mich. Comp. Laws 445.901); Nev. Compl. 178-197, 216-20 (Nev.
Rev. Stat. 41.600, 598.0915); N.J. Compl. 180-216 (N.J. Stat. 56:8-1); N.Y.
Compl. 182-215 (N.Y. Gen. Bus. Law 349); S.C. Comp. 178-200 (S.C. Code
Ann. 39-5-10); Tenn. Compl. 178-99 (Tenn. Code Ann. 47-18-101); Tex.
Compl. 177-200 (Tex. Bus. & Com. Code 17.41).
5
See Cal. Compl. 266-70; Conn. Compl. 198-202; Ill. Compl. 191-203;
Mich. Compl. 221-25; N.J. Compl. 223-27; Nev. Compl. 216-20; S.C.
Compl. 209-13; Tenn. Compl. 200-04; Tex. Compl. 201-09.
6
See Fla. Compl. 213-18; Mich. Compl. 215-20; N.J. Compl. 217-22; S.C.
Compl. 201-08.
-5-

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MOT. TO DISMISS ALL COMPLAINTS

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156, and (2) Pacquiao and Koncz failed to make certain disclosures in a question-

naire submitted to Nevada State Athletic Commission (NSAC), but not publicly,

the day before the Fight (NSAC Questionnaire), id. 3, 79-85; see also id.

183-203, 224-45, 267 (omission-based claims). Seven Complaints allege that

some Defendants made affirmative misrepresentations about Pacquiaos health.7

Here, Plaintiffs allege that Defendants advertise[d] and promote[d] a fair and hon-

est and uncompromised fight between two healthy fighters, id. 215, and repre-

sented that Pacquiao was in top physical condition and able to fully participate and

compete in the Fight, id. 211. Plaintiffs base these allegations on a handful of

10

statements, including that Defendants promoted the Fight as The Fight of the Cen-

11

tury and the biggest event in boxing history; that a Top Rank executive compared

12

the Fight to the Super Bowl; that another Top Rank executive said fans would

13

see the best Manny; and that Pacquiao said he fe[lt] good and ready for the

14

fight. Id. 55, 58, 73-74, 107. Plaintiffs also allege that the NSAC Questionnaire

15

falsely had no checked next to questions asking if Pacquiao had suffered a

16

shoulder injury or had any serious medical illnesses or conditions. Id. 5.


Attendee and Commercial Complaints: One complaint asserts NDTPA,

17
18

NCFA, and unjust enrichment claims on behalf of a nationwide putative class of

19

purchasers of tickets to the Fight (Attendee Plaintiffs). Dehart Compl. 178-200.

20

Another asserts claims for alleged violations of the Lanham Act, 15 U.S.C.

21

1125(a)(1), UCL, and NYDTPA and for unjust enrichment on behalf of a nation-

22

wide putative class, and California and New York putative subclasses, of commer-

23

cial CC distributors who bought license or sublicense rights to view and show the

24

telecast of the Fight (Commercial Plaintiffs).8 Jammers Compl. 161. All of these

25
26
27
28

See Cal. Compl. 204-23, Fla. Compl. 199-212, Mich. Compl. 198-214,
N.J. Compl. 200-16, Nev. Compl. 198-215, N.Y. Compl. 201-16
(Pacquiao Defendants representations violated the UCL, CLRA, FDUTPA,
MCPA, NJCFA, NDTPA, and NYDTPA); Cal. Compl. 246-65, Ill. Compl.
182-83 (same about Defendants for CLRA and ICFA).
8
CC distribution is distribution via commercial entities like bars and restaurants.
-6-

DEFS. MEM. OF P&A ISO MASTER


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claims are based on the same alleged nondisclosures discussed above. See id. 76-

82, 153; Dehart Compl. 77-83, 151.

III.

LEGAL STANDARD

A court must dismiss claims under Rule 12(b)(6) when there is no cogniza-

ble legal theory or an absence of sufficient facts alleged to support a cognizable le-

gal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).9 To survive a Rule

12(b)(6) motion, Plaintiffs must allege enough facts to state a claim to relief that is

plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

[L]egal conclusions, conclusory statements, and speculative allegations must be

10

disregarded. Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009).

11

Further, claims that sound in fraud must be pled with particularity under

12

Rule 9(b). Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Claims

13

sound in fraud when they allege a unified course of fraudulent conduct and rely en-

14

tirely on that course of conduct as [their] basis. Id. To meet Rule 9(b), Plaintiffs

15

must identify the who, what, when, where and how of the misconduct charged, as

16

well as what is false or misleading about [it], and why it is false. Rice v. Sunbeam

17

Prods., Inc., 2013 WL 146270, at *3 (C.D. Cal. Jan. 7, 2013). For omission-based

18

claims, this includes the content of the omission and where the omitted information

19

should or could have been revealed, plus representative samples of advertisements

20

[or] . . . representations [Plaintiffs] relied on to make [their] purchase and that failed

21

to include the information. Parenteau v. Gen. Motors, LLC, 2015 WL 1020499, at

22

*7 (C.D. Cal. Mar. 5, 2015) (Klausner, J.).

23

IV.

24

Plaintiffs must plead a legally cognizable injury for all of their claims, both

25
26
27
28

ALL 26 ACTIONS FAIL TO PLEAD A LEGALLY COGNIZABLE


INJURY

This Court should analyze federal procedural law in accordance with Ninth Circuit precedent, even for cases filed in other Circuits. In re Sony Gaming Networks
and Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 959 (S.D. Cal. 2014);
see Hall v. Sea World Entmt, Inc., 2015 WL 9659911, at *15-17 (S.D. Cal. Dec. 23,
2015) (Ninth Circuit Rule 9 precedent applied to Florida and Texas claims).
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DEFS. MEM. OF P&A ISO MASTER


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statutory10 and common law.11 Here, Plaintiffs claim they were injured by being de-

nied a fair and honest sporting event between two healthy, fit, and uninjured partic-

ipants at the top of their game. Cal. Compl. 10. That allegation fails to plead a

cognizable injury for two independent reasons: [A] Plaintiffs purchases gave them

only a right to see (or show) a fight at a specific time and place, which all admittedly

received, and [B] Plaintiffs admit the NSAC found Pacquiao fit to fight. Without a

legally cognizable injury, Plaintiffs claims must be dismissed with prejudice.

A.

Plaintiffs Were Not Denied the Right to View or Show a Fightthe


Only Right Provided by Their Ticket and PPV Purchases

Contrary to Plaintiffs suggestion, their tickets and PPV/CC licenses did not

10
11

entitle them to utilize the legal process to enforce a sports rules or to fulfill fans

12

subjective expectations of the Fight. Time and again, courts have rejected similar

13

10

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

See Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1048 (N.D. Cal. 2014) (CLRA
and UCL require economic injury); Caires v. JP Morgan Chase Bank, N.A., 880
F. Supp. 2d 288, 299 (D. Conn. 2012) (CUTPA requires ascertainable loss of money or property); N.J. Citizen Action v. Schering-Plough Corp., 842 A.2d 174, 176
(N.J. Super. Ct. App. Div. 2003) (same for NJCFA); Health Promotion Specialists,
LLC v. Bd. of Dentistry, 743 S.E.2d 808, 816 (S.C. 2013) (same for SCUTPA);
Tucker v. Sierra Builders, 180 S.W.3d 109, 115 (Tenn. Ct. App. 2005) (same for
TCPA); Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 858-60 (Ill. 2005)
(ICFA requires actual damage); Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337
& 1338 n.25 (11th Cir. 2012) (same for FDUTPA); McManus v. Sears Roebuck and
Co., 2003 WL 22024238, at *4 (Tex. App. Aug. 28, 2003) (same for TDTPA);
Goverau v. Wellish, 2012 WL5215098, at *2 (D. Nev. Oct. 19, 2012) (same for
NDTPA); Hendricks v. DSW Shoe Warehouse, Inc., 444 F. Supp. 2d 775, 781 (W.D.
Mich. 2006) (MCPA requires cognizable loss); Baron v. Pfizer, Inc., 42 A.D.3d
627, 629-30 (N.Y. App. Div. 2007) (NYDTPA requires actual harm); Southland
Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997) (Lanham Act
requires that plaintiff has been or is likely to be injured).
11
See Caires, 880 F. Supp. 2d at 310 (in Connecticut, unjust enrichment requires
detriment); Cleary v. Philip Morris Inc., 656 F.3d 511, 517-20 (7th Cir. 2011)
(same; Illinois); Baron, 42 A.D.3d at 629-30 (New York requires enrich[ment] at
plaintiffs expense); Ocaso, S.A., Comp. De Seguros Y Reaseguros v. P.R. Mar.
Shipping Auth., 915 F. Supp. 1244, 1263 (D.P.R. 1996) (same; Puerto Rico); C.T.
Charlton & Assocs., Inc. v. Thule, Inc., 541 F. Appx 549, 555 (6th Cir. 2013)
(Michigan requires receipt of a benefit by the defendant from the plaintiff that is
inequitable to retain); Berg v. Access Grp., Inc., 2014 WL 4812331, at *8 (E.D.
Pa. Sept. 26, 2014) (same; Pennsylvania); Reyna v. Wells Fargo Bank, N.A., 2011
WL 2690087, at *6 (D. Nev. July 11, 2011) (same; Nevada); PHG Tech., LLC v. St.
John Co., Inc., 459 F. Supp. 2d 640, 646 (M.D. Tenn. 2006) (same; Tennessee); Ellis v. Smith Grading and Paving, 366 S.E.2d 12, 14 (S.C. Ct. App. 1988) (same;
South Carolina). Plaintiffs conspiracy claims are derivative of their other claims,
see infra VI.E., and thus also fail unless a legally cognizable injury or loss is pled.
-8-

DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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1

claims by disgruntled spectators alleging fraud, misrepresentation, breach of con-

tract, unjust enrichment, and other causes of action because such claims present no

legally cognizable injury or loss. This case is no different.


Courts have long recognized that a ticket to a sporting event provides its hold-

4
5

er with nothing more than a revocable license to view what happens at the sched-

uled time and place. Mayer, 605 F.3d at 231. For this reason, courts routinely dis-

miss claims by ticketholders who allege they were entitled to see fair, honest, or

better competitions, regardless of whether such claims are dressed up as involving

undisclosed facts. See, e.g., id.; Mancina, 2013 WL 393041, at *1-2; Castillo, 268

10

A.2d at 336; infra n.16. [T]his license approach has, for some time, been followed

11

throughout the United States and in other common law jurisdictions throughout the

12

world. Mayer, 605 F.3d at 231; cf. Bowers, 489 F.3d at 321-22 (noting the same).

13

In fact, nine jurisdictions at issue have expressly adopted it.12 For the others that

14

have yet to consider the issue, the Court should apply this widely-accepted ap-

15

proach. See Saavedra v. Eli Lilly and Co., 2013 WL 3148923, at *3 (C.D. Cal. June

16

13, 2013) (in diversity cases, court must use its best judgment to predict how the

17

[relevant state] Supreme Court would decide the issue, including by looking to

18

well-reasoned decisions from other jurisdictions).13


The Third Circuit, for example, followed the license approach in affirming the

19
20

dismissal of putative class claims under the NJCFA brought by a New York Jets fan

21

12

22
23
24
25
26
27
28

See Ex parte Quarg, 149 Cal. 79, 80 (1906), Petrich v. MCY Music World, Inc.,
862 N.E.2d 1171, 1180 (Ill. App. Ct. 2007), Jacksonville Bulls Football, Ltd. v.
Blatt, 535 So. 2d 626, 629-30 (Fla. Dist. Ct. App. 1988), Percha v. Detroit Lions,
Inc., 2003 WL 23018757, at *1 (Mich. Ct. App. Dec. 23, 2003), Mayer, 605 F.3d at
231, Bickett v. Buffalo Bills, Inc., 122 Misc. 2d 880, 882 (N.Y. Sup. Ct. 1983), Miller v. Pittsburgh Athletic Co., 91 Pa. Super. 241, 243-44 (1927), Boswell v. Barnum
& Bailey, 185 S.W. 692, 692-93 (Tenn. 1916), Kelly v. Dent Theaters, Inc., 21
S.W.2d 592, 593 (Tex. Ct. App. 1929) (noting the license approach in California,
Illinois, Florida, Michigan, New Jersey, New York, Pennsylvania, Tennessee, and
Texas).
13
See also Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1043 (9th
Cir. 2011) (federal diversity courts are at liberty to predict the future course of [a
states] law, but not to adopt trailblazing initiatives); Johnson v. Columbia Props.
Anchorage, LP, 437 F.3d 894, 900 (9th Cir. 2006) (holding that a state court would
likely follow widely applied principles).
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DEFS. MEM. OF P&A ISO MASTER


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over the Spygate scandal in which the New England Patriots videotaped oppo-

nents sideline signals in violation of National Football League (NFL) rules. May-

er, 605 F.3d at 237. There, the plaintiff sought damages for the amount paid by Jets

ticket-holders to watch eight fraudulent games against the Patriots, claiming that

ticketholders were denied the right . . . to see an honest game played in compliance

with the NFL rules. Id. at 229, 233. The plaintiff alleged that Jets fans purchased the

tickets under the express and implied condition that the game is to be played honest-

ly and according to agreed rules and conditions, and that they would not have pur-

chased tickets if the Patriots had disclosed, or not concealed, that they intended to

10

play the game corruptly. Ex. 2, 40, 50 (Mayer complaint).14

11

The district court ruled, and the Third Circuit agreed, that the plaintiff failed

12

to set forth a legally cognizable right, interest, or injury because, [a]t best, he pos-

13

sessed nothing more than a contractual right to a seat from which to watch an NFL

14

game between the Jets and the Patriots, and this right was clearly honored. Mayer,

15

605 F.3d at 230. In so holding, the Third Circuit noted that courts have overwhelm-

16

ing[ly] rejected claims by spectators premised on theories of liability with respect

17

to the related issues of alleged poor performance and rule violations. Id. at 233-36,

18

n.4. This is because courts are ill-equipped to second-guess[] the decision taken by

19

a professional sports league purportedly enforcing its own rules and public policy

20

considerations weigh against recognizing a right to see an honest game, as this

21

would inundate courts with disappointed fans filing lawsuits because of a blown

22

call . . . or any number of allegedly improper acts committed by teams, coaches,

23

players, referees and umpires, and others. Id. at 237.15

24

14

25
26
27
28

All exhibits cited herein are attached to the Declaration of Jeffrey A. Barker
(MDL Docket Entry 148), and their existence and content may be considered in ruling on this motion for the reasons discussed in Defendants Request for Judicial Notice (MDL Docket Entry 147).
15
See also Bowers v. Fdration Intl de lAuto., 461 F. Supp. 2d 855, 861 (S.D.
Ind. 2006), affd on narrower grounds, 489 F.3d 316 (if fans could sue when a
sports governing rules are broken, they could challenge some part or another of
almost every single sporting event requiring a ticket for admission); Beder, 717
N.E.2d at 720-21 (such claims would enable any ticket holder not satisfied with the
- 10 -

DEFS. MEM. OF P&A ISO MASTER


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The same result occurred in Castillo, which involved claims by ticketholders

and PPV purchasers of the fight in which Mike Tyson was disqualified for biting

Evander Holyfields ear. 268 A.D.2d at 336-37. The plaintiffs sued Tyson and the

fights promoters and broadcasters, claiming they [were] entitled to their money

back because they had been promised, but were denied, the right to view a legiti-

mate heavyweight title fight fought in accordance with the applicable rules and regula-

tions of the governing boxing commission. Id. In support of this claim, the plaintiffs

alleged that Tyson fail[ed] to disclose an alleged premeditated plan he had to be

disqualified if it looked like he may lose the fight. Ex. 3, 107 (Castillo complaint).

10

According to plaintiffs, [i]f the true nature of Tysons misrepresentations and omis-

11

sions had been known to plaintiffs and the Class, facts which Tyson successfully con-

12

cealed, plaintiffs and the Class would not have paid to watch the fight. Id. 115. As

13

with the other cases, the court upheld the dismissal of all claims, holding that a fight

14

end[ing] in a disqualification is a possibility that a fight fan can reason-ably ex-

15

pect and that the plaintiffs had received what they paid for, namely, the right to

16

view whatever event transpired. Castillo, 268 A.D.2d at 336-37.

17

Mancina likewise rejected claims by dissatisfied spectators. There, a New Or-

18

leans Saints season ticketholder asserted fraud and consumer fraud claims against

19

the NFL and its commissioner after the NFL sanctioned the Saints for allegedly pay-

20

ing its players bounties to injure opposing team players. Mancina, 2013 WL

21

393041, at *1-2. The plaintiff alleged that his tickets were purchased with the rep-

22

resentation, and expectation that the Saints would be capable of competitively

23

fielding a contending team without improper interference from the NFL and that

24

the sanctions were wrongfully imposed, diminished ticket values, and damaged

25

the competitive quality of the Saints. Id. In dismissing these claims, the court

26

adopt[ed] in full the reasoning of Mayer and held that plaintiffs tickets only

27

grant[ed] him the right of entry and seating. Id. at *3.

28

performance to sue).
- 11 -

DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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#:295

As these cases show, as a matter of law, Plaintiffs tickets and PPV/CC pur-

1
2

chases at most gave them a right to view a fight card involving the main event of

Pacquiao vs. Mayweathernot a particular type of fight, not a more competitive

bout, and certainly not a fight between two unblemished boxers, when (as explained

below) it is commonly known and understood that athletes generally, and boxers in

particular, can and do experience injuries during training or while competing. In-

deed, the Commercial Plaintiffs concede they merely bought license or sublicense

rights to view and show the CC telecast of the Fight. See supra II. No Plaintiff

was denied any of these rights. Thus, as in Mayer, Castillo, and Mancinaand the

10

many cases adopting the same rationalePlaintiffs have no legally cognizable claim

11

even if they were dissatisfied and would not have made their purchases had they

12

known Pacquiao had been injured during training.16

13

B.

14

Plaintiffs Only Had a Reasonable Expectation to See a Fight Between Opponents Cleared to Fight by the NSAC

All of Plaintiffs claims also fail for an independent reason: Plaintiffs had no

15
16
17
18
19
20
21
22
23
24
25
26
27
28

16

See, e.g., Bowers, 489 F.3d at 322 ([Plaintiffs] admit that they had no additional
right to a race that was exciting or drivers that competed well.); Seko Air Freight v.
Transworld Sys., Inc., 22 F.3d 773, 774 (7th Cir. 1994) (That the Chicago Cubs
turn out to be the doormat of the National League would not entitle the ticket holder
to a refund . . . , any more than the state tenors laryngitis entitles the opera goer to a
refund when the understudy takes over . . . .); Estate of Oshinsky v. N.Y. Football
Giants, Inc., 2011 WL 383880, at *9 (D.N.J. Feb. 2, 2011) (rejecting claim that
plaintiff viewed horrible teams because there was no covenant to field play-off
bound teams each year); Bowers, 461 F. Supp. 2d at 859 (The uniform weight of
established case law holds that a failure to satisfy the subjective expectations of
spectators at a sporting event is not actionable under law.); Charpentier v. L.A.
Rams Football Co., Inc., 75 Cal. App. 4th 301, 314 (1999) ([P]laintiff did not buy
the right to watch a good team or to have enlightened (in his opinion) management
decisions made); Beder, 717 N.E.2d at 720-21 (dismissing breach of contract claim
based on the Browns perform[ing] poorly); Stern v. Cleveland Browns Football,
Inc., 1996 WL 761163, at *6 (Oh. Ct. App. Dec. 20, 1996) (refus[ing] to recognize a claim seeking refund based on the poor performance by the team); Strauss
v. Long Islands Sports, Inc., 60 A.D.2d 501, 510 (N.Y. App. Div. 1978) (ticketholder [did] not state a cause of action based on disappointment with trade of star
player); Berenz v. Diamond Road, Inc., 2004 WL 5335150, at *3 (Ill. Cir. Ct. July
13, 2004) (dismissing ICFA and unjust enrichment claims seeking a refund for a
concert in which the lead singer was intoxicated; noting case law establishes that
the purchase of a ticket entitles the buyer to a seat, and perhaps to some performancebut not to a performance of a stated quality (emphasis in original)).
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DEFS. MEM. OF P&A ISO MASTER


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legal right and no reasonable expectation to see a fight between opponents who were

unscathed and suffered no injuries during training. See Cal. Compl. 10. There is no

dispute and can be no dispute that, given the nature of combat sports, fighters fre-

quently suffer injuries during rigorous training. See, e.g., Exs. 4-6 (MMA fighter dis-

closed after bout he suffered knee and rib injuries during training); Ex. 7 (boxer dis-

closed after bout he fractured his wrist three weeks prior and hid the injury from the

New York State Athletic Commission); Ex. 8 (boxer disclosed after bout he fought

with an injured Achilles tendon that required surgery months prior).

For that reason, the law has entrusted state athletic commissions with jurisdic-

10

tion to declare fighters fit to fightor not fit to fight. See, e.g., N.J. Admin. Code

11

13:46-12A.4(c) (No boxer shall be permitted to enter the ring unless the physician

12

appointed by the Commissioner has certified his or her fitness to engage in a boxing

13

contest.); N.Y. Uncon. L. 8925 (All boxers must be examined by a physician

14

designated by the commission before entering the ring . . . .); Fl. Admin. Code

15

61K1-1.004(3)(a) (No participant shall be permitted to engage in a match unless he

16

has been examined and pronounced fit to do so by a physician.). That is true

17

here: since the event occurred and was sanctioned and occurred in Nevada, the

18

NSAC had jurisdiction to declare the participants fit to fight.

19

Plaintiffs admit as a matter of fact that the NSAC learned of Pacquiaos inju-

20

ry at least three hours before the Fight, examined him, and still allowed him to

21

box. Cal. Compl. 84. In doing so, the NSAC necessarily found Pacquiao fit to

22

fight. See Nev. Admin. Code 467.545 (unfit boxers shall not participate in the

23

contest); id. 467.562 (boxers unfit to compete must be suspended until it is

24

shown that he . . . is fit). Thus, Plaintiffs experienced no legally cognizable injury

25

or loss even if they were entitled to see a fight between boxers deemed fit to fight by

26

the governing regulatory body. See Bowers, 489 F.3d at 321 (affirming dismissal of

27

breach of contract claim because, even if tickets provided a right to a regulation

28

Formula One race, plaintiffs got such a race).


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DEFS. MEM. OF P&A ISO MASTER


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Nor can Plaintiffs manufacture a statutory or common law claim by asserting

that the Fight was not fair and honest because Pacquiao allegedly violated NSAC

regulations in the way he filled out the pre-fight NSAC Questionnaire.17 That modi-

fied theorywhich could only apply to Pacquiao in any eventlikewise fails be-

cause it is an improper attempt to enforce NSAC regulations that provide no private

right of action. See Nev. Admin. Code 467.885 (only [t]he Commission may en-

force NSAC regulations and seek disciplinary action). Even if the Court assumes

that any Defendant violated NSAC regulations (and none did so), that is a matter for

the NSAC to addressnot the Court or Plaintiffs, who lack the knowledge, experi-

10

ence, and tools to engage in such an inquiry. Mayer, 605 F.3d at 237. In fact,

11

Plaintiffs allegations of rule violations are particularly improper here because, un-

12

like in other cases like Mayer, Castillo, and Mancina (where similar claims were re-

13

jected), Plaintiffs do notand cannoteven allege that the NSAC has sanctioned

14

any Defendant or found that any Defendant violated NSAC regulations.

15

Moreover, the Questionnaire has no relevance to Plaintiffs claims. Plaintiffs

16

concede that it was not made public (or expected to be made public) until after the

17

Fight. Cal. Compl. 86 (emphasis added). Knowing this, Plaintiffs try to plead

18

around such conclusive facts by speculating that, had the Pacquiao Defendants no-

19

tified the NSAC of the injury in a timely manner, this information would have

20

been made available, either immediately or within a very short time. Id. 90. Such

21

rank speculation about what a regulatory body might have done in other circum-

22

stances must be disregarded. See Twombly, 550 U.S. at 555, 570. Simply put, no

23

statements or omissions in the Questionnaire were relied on, or even could have

24

been relied on, by any Plaintiff or affected any Plaintiffs purchasing decision.
Each of these reasons alone is sufficient to compel dismissal of all 26 actions.

25
26
27
28

17

See, e.g., Cal. Compl. 64-65, 68, 80-81 (alleging that Pacquiao and Koncz
signed NSAC Official Bout Agreements requiring an honest exhibition of skill;
Questionnaire was required by NSAC regulations; Defendants concealed facts
from NSAC). However, Plaintiffs cite no regulations, much less explain how any
Defendant violated them. See, e.g., Cal. Compl. 64-65, 68, 80-81.
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DEFS. MEM. OF P&A ISO MASTER


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Together, they leave no doubt that Plaintiffs suffered no legally cognizable injury.

V.

THE COURT SHOULD DISMISS ALL 26 ACTIONS FOR FAILURE


TO PLEAD FRAUD WITH PARTICULARITY UNDER RULE 9(b)

All claims here center on the allegation that Defendants misrepresent[ed]

and/or conceal[ed] material facts about Pacquiaos injury, and that they did so

willfully, intentionally, maliciously and fraudulently, with intent to deceive and de-

fraud. Cal. Compl. 181.18 Thus, all claims sound in fraud and must meet Rule

9(b). Kearns, 567 F.3d at 1125.19 None does so, however, because all Complaints

rely on improper group pleading and fail to plead any fraud with specificity.

10

A.

All Complaints Engage in Improper Group Pleading

11

In cases with multiple defendants, a complaint must specify particularized

12

wrongdoing of each defendant. It is hornbook law that a fraud-based complaint that

13

lump[s] multiple defendants together lacks requisite specificity and must be dis-

14

missed. Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007).20 Rule 9(b)

15

requires plaintiffs to differentiate their allegations by inform[ing] each defendant

16

separately of the allegations surrounding his alleged participation in the fraud and

17

identify[ing] the role of each defendant in the alleged fraudulent scheme. Id.
All of the Complaints are replete with improper group pleading, lumping

18
19

three companies and five individuals into the combined term Defendants. Two of

20
21
22
23
24
25
26
27
28

18

See also Cal. Compl. 3 (Defendants intentionally concealed this material fact);
id. 11, 21, 58, 75 (same); id. 162 (Plaintiffs are victims of a bait and
switch); id. 181 (All actions and omissions by Defendants were willful . . . .).
19
See also Hall, 2015 WL 9659911, at *2, *15-17 (applying Rule 9(b) to consumer
protection and unjust enrichment claims under various states laws based on the
same course of allegedly fraudulent conduct and the same alleged misrepresentations and omissions); Sony, 996 F. Supp. 2d at 988-89, 995-998 & n.40 (same
where claims alleged defendant knowingly omitted or misrepresented material
facts); In re Hydroxycut Mktg. and Sales Practices Litig., 801 F. Supp. 2d 993,
1005-06 (S.D. Cal. 2011) (same); Brosnan v. Tradeline Solutions, Inc., 2009 WL
1604572, at *4-6 (N.D. Cal. June 5, 2009) (same for Lanham Act claim).
20
See Bassam v. Bank of Am., 2015 WL 4127745, at *7 (C.D. Cal. July 8, 2015) (a
complaint must indicate which defendant(s) are responsible for which alleged
wrongful act); Corazon v. Aurora Loan Srvs., LLC, 2011 WL 1740099, at *4 (N.D.
Cal. May 5, 2011) ([u]ndifferentiated pleading is improper).
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MOT. TO DISMISS ALL COMPLAINTS

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the companies, Top Rank and Mayweather Promotions, are competitors. None of the

Defendants are alleged to be partners with one another. All act independently and,

oftentimes, must negotiate against the others.

Defendants, as Plaintiffs collectively call them, did not have identical pre-

Fight knowledge of the injury.21 Nor did they have identical roles in promoting the

Fight.22 Yet Plaintiffs repeatedly fail to distinguish among the Defendants (or even

among the so-called Pacquiao Defendants), as to what each Defendant allegedly

knew and when; which Defendant did or said (or failed to do or say) what, when,

where, or to whom; and how each Defendants alleged statements or omissions are

10

misleading in light of his or its circumstances.23 This pervasive group pleading

11

makes it impossible to discern the basis of Plaintiffs claims as to each Defendant,24

12

which defeats all claims. See id. (dismissing complaint that shot through with gen-

13

eral allegations that the defendants engaged in fraudulent conduct but attribute[d]

14

specific misconduct only to [some]).25

15

B.

All Complaints Lack the Details Required By Rule 9(b)

16

Plaintiffs also fail to plead the details Rule 9(b) requires. Despite filing 15

17

complaints against 8 defendants on behalf of various putative classes, all Plaintiffs

18

rely on similarly generalized and conclusory allegations that do not provide the de-

19

21

20
21
22
23
24
25
26
27
28

Compare Cal. Compl. 79 (Pacquiao Defendants had full knowledge of the injury), with id. 130 (HBO knew, or should have known of the same).
22
See Cal. Compl. 44 (the Fight was promoted by Top Rank and co-produced
and co-distributed by HBO); id. 42 (HBO produced Mayweather / Pacquiao At
Last (At Last), a documentary detailing both fighters training and preparation
leading up to the Fight).
23
See, e.g., Cal. Compl. 2-3, 6-7, 10-12, 17, 20-22, 32-35, 39, 55, 59, 66-67, 71,
73, 75-76, 99, 145, 149-151, 153-57, 159-161, 168-70, 173, 178, 181-82, 184-200,
202-03, 225-26, 228-39, 241-45, 247-48, 250-51, 253-54, 256-59, 261, 263-65, 26770 (allegations about Defendants); id. 79, 90, 107, 120, 205-09, 211-12, 214-20
(allegations about the Pacquiao Defendants).
24
For example, Plaintiffs allege that Koncz is responsible for actions and decisions
that led to the failure of the Defendants to disclose the injury, Cal. Compl. 39,
without identifying the Defendants or explaining how Koncz is responsible for
nondisclosures by Defendants with whom he is not alleged to have had any contact. See also id. 34-35 (similar allegations about Top Rank and Pacquiao).
25
See also Bassam, 2015 WL 4127745, at *7 (same where complaint improperly
grouped together defendants); Corazon, 2011 WL 1740099, at *4 (same).
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DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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tails of any transaction in which a Plaintiff was supposedly defrauded. For example:

Plaintiffs fail to allege what details about the the existence and nature of
the injury were material or should have been disclosed, Cal. Compl.
156,26 much less why the lack of the unspecified disclosures was misleading or how each Defendant allegedly knew of the unspecified undisclosed
information.

3
4
5

Plaintiffs fail to allege when or where the allegedly undisclosed information should or could have been revealed in publicly disclosed materials
that they viewed before making their purchases.

6
7
8

In many instances, Plaintiffs fail to identify which specific Defendant


made the alleged misrepresentations. As discussed above, they routinely
allege that Defendants (or the Pacquiao Defendants) made misrepresentations without specifying any Defendant(s) in particular.

9
10
11

Plaintiffs fail to identify what supposedly affirmative false statements any


Defendant made to any specific Plaintiff, much less when or where any
such statement was made, why it was false, and how it affected any Plaintiff. In fact, they identify no such statements as to HBO or any statement
by any Defendant that they viewed or relied on. See infra VI.A.1-2.

12
13
14
15

As to the purported conspiracy, Plaintiffs fail to plead when, where, and


how Defendants knowingly agreed to suppress[] and conceal[] the injury, Fla. Compl. 215; who was involved in forming this agreement; and
which Defendants participated in the schemes and how. See infra VI.E.

16
17
18

Without this information, no Plaintiff can tie his or her purchase to any De-

19

fendants alleged fraudulent conduct. This is fatal to all Complaintscourts regular-

20

ly dismiss fraud-based claims that rely on similar conclusory allegations that do not

21

identify the specific fraudulent omissions or statements at issue or the who, what,

22

when, where, and how required by Rule 9(b). See Kearns, 567 F.3d at 1126 (Rule

23

9(b) not met where plaintiff did not identify the deceptive ads he was exposed to,

24

what they specifically stated, when he was exposed to them or which ones he

25

found material, and which ones he relied upon); Vess v. Ciba-Geigy Corp., 317

26

F.3d 1097, 1106-07 (9th Cir. 2003) (affirming dismissal for failure to plead the par-

27

26

28

See also, e.g., Cal. Compl. 189, 219 (alleging Defendants did not disclose[]
the true nature and extent of Pacquiaos injury); id. 190, 197-98, 220, 237 (alleging Defendants omitted material facts about Pacquiaos shoulder injury).
- 17 -

DEFS. MEM. OF P&A ISO MASTER


MOT. TO DISMISS ALL COMPLAINTS

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ticulars of when, where, or how the alleged conspiracy occurred); In re Hydroxycut

Mktg. and Sales Practices Litig., 299 F.R.D. 648, 659-60 (S.D. Cal. 2014) 659-60

([W]hatever the knowledge requirements of individual states might be, because

Plaintiffs have chosen to plead a unified course of fraudulent conduct . . . , [they]

must allege facts supporting an inference of knowledge as to all of the state consum-

er claims.; California, Florida, New Jersey, and New York consumer fraud claims

dismissed for not doing so).27 This Court should do the same.

VI.

ALL 26 ACTIONS FAIL TO PLEAD VIABLE CAUSES OF ACTION


FOR ADDITIONAL, CLAIM-SPECIFIC REASONS

10

A.

The Statutory Consumer Fraud Claims Fail

11

Plaintiffs assert statutory consumer fraud claims under the laws of 11 jurisdic-

12

tions. See supra II. All fail for two independent reasons: [1] no Plaintiff alleges an

13

actionable omission because no defendant had a legal duty to disclose Pacquiaos

14

medical condition to Plaintiffs, or any actionable affirmative misrepresentation; and

15

[2] no Plaintiff has statutory standing. They also fail for other, claim-specific rea-

16

sons, as discussed below.28

17
18
19
20
21
22
23
24
25
26
27
28

27

See also Parenteau, 2015 WL 1020499, at *7 (Rule 9(b) not met for failure to
plead the representations [plaintiff] relied on that failed to include the omitted information); Hall, 2015 WL 9659911, at *10-14, *16 (same for failure to plead the
details of the misrepresentations and omissions on which [plaintiffs] allegedly relied, including why [certain] statements [were] false, whether [p]laintiffs
viewed them before purchasing their tickets, and where any omitted information
could have been revealed such that [p]laintiffs would have seen it before a purchase); Gomez v. Carmax Auto Superstores Cal., LLC, 2015 WL 350219, at *7-8
(C.D. Cal. Jan. 22, 2015) (same for failure to plead when plaintiff saw and heard
the ads at issue); Janney v. Mills, 944 F. Supp. 2d 806, 818 (N.D. Cal. 2013) (same
for failure to specify what the exact false or misleading statements are, why the
statements are false or misleading, where exactly the statements are located, or
which statements plaintiffs relied on); Von Koenig v. Snapple Beverage Corp.,
2011 WL 43577, at *3 (E.D. Cal. Jan. 6, 2011) (same for failure to plead specific
advertisements or promotional materials, when [plaintiffs] were exposed to them,
and how such advertisements or materials were false or misleading).
28
For purposes of this motion, the CUTPA claim does not fail on other grounds.
Although CUTPA proscribes both unfair and deceptive acts or practices, Conn.
Gen. Stat. 42-110b(a), the Connecticut Plaintiff only asserts a claim under CUTPAs deceptive prong, see Conn. Compl. 185, 195, 197. Specifically, he alleges
that Defendants deceived consumers by fail[ing] to disclose Pacquiaos injury. Id.
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DEFS. MEM. OF P&A ISO MASTER


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2
3
4

1.

All Plaintiffs Fail to Plead Actionable Omissions or Affirmative Misrepresentations


a.

No Defendant Had a Duty to Publicly Disclose Information About Pacquiaos Health

The statutory consumer fraud claims in every case before the Court are prem-

ised on the theory that Defendants failed to publicly disclose Pacquiaos injury. Id.

To prevail on these claims, Plaintiffs must establish that Defendants had a duty to

disclose this information.29 As a matter of law, Defendants had no such duty.

8
9

In fact, no court has recognized the broad duty that Plaintiffs assert: a supposed obligation to publicly disclose an athletes private health information prior to

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

188, 190. That claim fails because, as discussed below, no Defendant had a duty
to disclose this information. See infra VI.A.1.(a); Glazer v. Dress Barn, Inc., 873
A.2d 929, 961-62 (Conn. 2005) (under the CUTPA, a failure to disclose can be deceptive only if . . . there is a duty to disclose; defendants nondisclosure did not
constitute a CUTPA violation because there was no duty to disclose); see also
Southington Sav. Bank v. Rodgers, 668 A.2d 733, 736-37 (Conn. App. Ct. 1995)
(same). It also fails for lack of statutory standing. See infra VI.A.2.
29
See Hall, 2015 WL 9659911, at *6-8 (UCL and CLRA omission-based claims require duty to disclose); Glazer, 873 A.2d at 961-62 (same for CUTPA); Hendricks, 444 F. Supp. 2d at 782 (same for MCPA); Steele v. Goddard, 2013 WL
3013671, at *7 (Tex. Ct. App. June 13, 2013) (same for TDTPA); Schwarz v. Bear
Stearns Cos., Inc., 266 A.D.2d 133, 133 (N.Y. App. Div. 1999) (affirming dismissal
of NYDTPA claim where defendant had no duty to disclose); Mallory v. McCarthy & Holthus, LLP, 2015 WL 2185413, at *3 (D. Nev. May 11, 2015) (dismissing
NDTPA claim for failure to allege how Defendant [was] bound . . . to disclose the
information); Cirzoveto v. AIG Annuity Ins. Co., 625 F. Supp. 2d 623, 630-32
(W.D. Tenn. 2009) (same for TCPA claim); Arcand v. Brother Intl Corp., 673 F.
Supp. 2d 282, 297 (D.N.J. 2009) (under the NJCFA, there can be no fraud, or reliance if defendant was under no obligation to disclose the information); Ardis v.
Cox, 431 S.E.2d 267, 270 (S.C. Ct. App. 1993) (Nondisclosure is fraudulent where
there is a duty to speak.). Regardless of whether or not a duty to disclose is an element of a FDUTPA claim, the Florida Plaintiffs must plead such a duty here because the sole basis alleged for [their] FDUTPA claim is Defendants [alleged]
breach of an affirmative duty of disclosure that [does] not exist under Florida
law. Virgilio, 680 F.3d at 1338; see Fla. Compl. 150 (Under Florida law, Defendants had a duty to disclose material facts to consumers who were spending
money to purchase the PPV broadcast, including facts concerning Pacquiaos injury.); id. 129, 151, 168(f), 192 (allegations about alleged duty to disclose). The
same is true of the ICFA claim: although ICFA claims do not require pleading a
common-law duty to disclose, Rockford Meml Hosp. v. Havrilesko, 858 N.E.2d
56, 62 (Ill. 2006), the Illinois Plaintiffs must do so here because their claim is based
on Defendants purported breach of a duty to disclose material facts, Ill. Compl.
149-50; see also id. 76, 128, 167(f) (allegations about alleged duty to disclose).
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a sporting event. There are good reasons for this.


First, this supposed duty is inherently inconsistent with the right to privacy

2
3

that protects individuals from unauthorized disclosure of their health infor-

mation. See, e.g., Jeffrey H. v. Imai, Tadlock & Kenney, 85 Cal. App. 4th 345, 353

(2000) (The zones of privacy created by article I, section 1 [of the California

Constitution], extend to the details of ones medical history.), overruled in part on

other grounds, Jacob B. v. Cty. of Shasta, 40 Cal. 4th 938 (2007).


Second, spectators do not and cannot reasonably expect to be made privy to an

8
9

athletes doctor visits, diagnoses, or medical condition. A ticket or PPV/CC license

10

entitles its holder to view what transpires at a given time and placeno more, no

11

less. They create no other rights or expectations, including a right to be informed of

12

injuries. Cf. Druyan v. Jagger, 508 F. Supp. 2d 228, 238-43 (S.D.N.Y. 2007) (dis-

13

missing fraud claim alleging untimely notification of events cancellation because

14

plaintiff was owed no extracontractual duty of such notifications).


Moreover, it is common knowledge that athletes generallyand boxers in

15
16

particularcompete with injuries, see supra IV.B., and reasonable viewers recog-

17

nize that athletes do not publicly reveal such information before competing because

18

doing so would give their opponent an undue advantage.30 As one commentator that

19

Plaintiffs cite put it: making the injury public was like putting a target on it for

20

Mayweather.31 Because it is objectively unreasonable to expect such disclosures,

21

Defendants had no obligation to make them.32

22

30

23
24
25
26
27
28

Plaintiffs allegation that [i]t is common for boxers to disclose a serious injury
and then postpone a match, Cal. Compl. 147, is irrelevant to the fact that such disclosures routinely are not made where, as here, a match is not postponed.
31
See Sirota Dkt. #10-4, Ex. C at 4 (Yahoo Sports article).
32
See, e.g., Aberdeen v. Toyota Motor Sales, U.S.A., 2009 WL 7715964, at *4-5
(C.D. Cal. June 23, 2009), revd on other grounds, 422 F. Appx 617 ([W]here
there is no fiduciary relationship and the defendant made no affirmative or partial
misrepresentations, a plaintiff must show that the public had an expectation or an assumption about the matter in question in order to establish a duty to disclose. (citing cases)); Bardin v. Daimlerchrysler Corp., 136 Cal. App. 4th 1255, 1260-77
(2006) (UCL and CLRA claims dismissed for lack of a duty to disclose where plaintiff failed to allege members of the public had any expectation or made any assumptions about the matter at issue); Searle v. Wyndham Intl, Inc., 102 Cal. App.
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DEFS. MEM. OF P&A ISO MASTER


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Stated differently, [s]ince [Plaintiffs] alleged no consumer expectations

about the matter in question, it could not be material. Falk v. Gen. Motors Corp.,

496 F. Supp. 2d 1088, 1096 (N.D. Cal. 2007). Materiality is judged by the effect on

a reasonable consumer,33 and as explained above, no reasonable consumer could

necessarily expect to see uninjured fighters or receive pre-fight injury reports. Ac-

cordingly, no duty could exist to disclose such information.34 See Wilson v. Hewlett-

Packard Co., 668 F.3d 1136, 1143 (9th Cir. 2012) (UCL and CLRA claims dis-

missed because the omitted information was not material).35

Third, Plaintiffs do not and cannot allege any transaction or fiduciary-like re-

10

lationship between them and any Defendant. In fact, they concede that they made

11

their purchases through third parties. See, e.g., Cal. Compl. 22 (cable providers

12

sold PPV licenses); Dehart Compl. 26-27, 130 (tickets sold via MGM Grand or

13

on the secondary market); Jammers Compl. 41 (sublicensors sold CC tele-

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4th 1327, 1335 (2002) (same for UCL and FAL claims where consumers had no
legitimate interest in the information at issue); Interallianz Bank AG v. Nycal
Corp., 1995 WL 406112, at *5 (S.D.N.Y. July 7, 1995) (no duty to disclose where
plaintiff had no reasonable expectation for the alleged disclosures); Olson v.
Accessory Controls & Equip. Corp., 757 A.2d 14, 35 (Conn. 2000) (same where
plaintiff did not expect the disclosures).
33
See, e.g., Brod v. Sioux Honey Assn, Co-op., 927 F. Supp. 2d 811, 830-31 (N.D.
Cal. 2013) (under the UCL and CLRA, a misrepresentation is material if a reasonable man would attach importance to its existence or nonexistence in determining his choice of action); Chiste v. Hotels.com L.P., 756 F. Supp. 2d 382, 403-04
(S.D.N.Y. 2010) (reasonable consumer standard applies to NYDTPA); Kitzes v.
Home Depot, U.S.A., Inc., 872 N.E.2d 53, 60-61 (Ill. App. Ct. 2007) (same; ICFA).
34
See Wirth v. Mars Inc., 2016 WL 471234, at *3-6 & n.5 (C.D. Cal. Feb. 5, 2016)
(omissions must be material for a duty to disclose); Southington, 668 A.2d at 736
(omissions must be material for CUTPA); Burrows v. Purchasing Power, LLC,
2012 WL 9391827, at *5 (S.D. Fla. Oct. 18, 2012) (same; FDTPA); M.C.L.
445.903(1) (same; MCPA); Nev. Rev. Stat. 598.0923(2) (same; NDTPA);
N.J.S.A. 56:8-2 (same; NJCFA); Stutman v. Chemical Bank, 731 N.E.2d 608, 611
(N.Y. Ct. App. 2000) (same; NYDTPA); Warren v. Warrior Golf Capital, LLC, 126
F. Supp. 3d 988, 997 (E.D. Tenn. 2015) (same; TCPA); Sergeant Oil & Gas Co. v.
Natl Maint. & Repair, Inc., 861 F. Supp. 1351, 1364 (S.D. Tex. 1994) (same;
TDTPA); Kitzes, 872 N.E.2d at 60 (same; ICFA); cf. F.T.C. v. Stefanchik, 559 F.3d
924, 928 (9th Cir. 2009) (same for Federal Trade Commission Act (FTCA)).
35
Wilson offers another reason why Defendants had no duty to disclose in California: Plaintiffs do not and cannot allege that the alleged omissions pose[d] safety
concerns. 668 F.3d at 1142 (to be material and create a duty to disclose, an omission must pose safety concerns); see Hall, 2015 WL 9659911, at *7 (same).
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cast). This forecloses any supposed duty to disclose under California, Connecticut,

Nevada, South Carolina, Tennessee, and Texas law.36


Nor can Plaintiffs rely on the Questionnaire or NSAC regulations to establish

3
4

a duty to disclose.37 As explained above, any statements or omissions in the Ques-

tionnaire were unknown to Plaintiffs before the Fight and therefore are both legally

and factually meaningless to their claims. See supra IV.B.


b.

No Actionable Affirmative Misrepresentations

For eight of the state-law consumer fraud claims, Plaintiffs allege that De-

8
9

fendants made affirmative misrepresentations about Pacquiaos health. See supra

10

II. Such claims must be based on the actual alleged statements, however, not Plain-

11

tiffs characterizations of them. For example, Plaintiffs generically assert that De-

12

fendants advertise[d] and promote[d] a fair and honest and uncompromised fight

13

between two healthy fighters, neither having any physical disability, Cal. Comp.

14

215, 257, see id. 10, 214, 256, and deceptively misrepresented to the public that

15

Pacquiao was in top physical condition and able to fully participate and compete in

16

the Fight without disability, id. 211, 253, see id. 212, 254. But Plaintiffs do

17

not point to any press conference, advertisement, quotation or other source in which

18

any Defendant uttered any such words.


Instead, specific statements Plaintiffs do identify say something different. It is

19
20
36

21
22
23
24
25
26
27
28

See L.A. Meml Coliseum Commn v. Insomniac, Inc., 233 Cal. App. 4th 803, 83132 (2015) (a duty to disclose arises only from fiduciary or fiduciary-like relationships that are grounded in some sort of transaction between the parties.); Glazer,
873 A.2d at 961-62 (A duty to disclose may be imposed by statute or regulation . . .
may arise under the common law . . . [or by a] special relationship.); Saltire Indus.,
Inc. v. Waller, Lansden, Dortch & Davis, PLLC, 491 F.3d 522, 529 (6th Cir. 2007)
(under Tennessee law, a duty to disclose arises where a fiduciary relationship or
contractual or other type of business relationship [exists] between the parties);
Pitts v. Jackson Natl Life Ins. Co., 574 S.E.2d 502, 512-13 (S.C. Ct. App. 2002)
(same); Roeder v. Atl. Richfield Co., 2011 WL 4048515, at *10 (D. Nev. Sept. 8,
2011) (a duty to disclose requires a relationship between the parties) (applying
Nevada law); Resendez v. Scottsdale Ins. Co., 2016 WL 756576, at *3 (W.D. Tex.
Feb. 26, 2016) (Texas law imposes a duty to disclose where a fiduciary or confidential relationship exists . . . .).
37
See Cal. Compl. 79 (Pacquiao Defendants failed to disclose injury to NSAC);
id. 209, 251 (same as to Defendants).
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DEFS. MEM. OF P&A ISO MASTER


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these statementsnot Plaintiffs distortion of themthat must be analyzed:


Defendants allegedly promoted the Fight as The Fight of the Century
and the biggest event in boxing history. Id. 55; see id. 2, 57, 73.

2
3

Bob Arum allegedly stated that fans would see the best Manny and that
Pacquiao was better than Ive ever seen him, super confident, and super relaxed. Id. 107.

4
5
6

Todd duBoef allegedly compared the Fight to the Super Bowl. Id. 58.

7
8

Pacquiao allegedly stated that he felt good and ready for the fight and
conditioned 100% spiritually, mentally, physically. Id. 7, 73, 74.

None of these statements come remotely close to promising that the Fight

10

would be fair and honest and uncompromised or that Pacquiao would be injury-

11

free. Plaintiffs failure to allege facts identifying any such statements defeats their

12

misrepresentation-based claims. See Twombly, 550 U.S. at 555.


Nor are any of these statements otherwise actionable. To qualify as an action-

13
14

able misrepresentation, Plaintiffs must allege facts showing that the statement at is-

15

sue is likely to deceive reasonable consumers.38 A statement does not meet this

16

standard if it is mere puffery, that is, a vague, subjective claim about the quality of

17

goods or services.39 All of the statements Plaintiffs identify are classic, non-

18

38

19
20
21
22
23
24
25
26
27
28

See Janda v. T-Mobile USA, Inc., 378 F. Appx 705, 707-08 (9th Cir. 2010) (affirming dismissal of UCL and CLRA claims for failure to plead a misrepresentation
likely to deceive reasonable consumers); McKinniss v. Sunny Delight Beverages
Co., 2007 WL 4766525, at *3 (C.D. Cal. Sept. 4, 2007) (Klausner, J.) (In order to
state a claim under the UCL, FAL, or CLRA, Plaintiffs must allege that statements
or other representations . . . are likely to deceive a reasonable consumer.); HW Aviation LLC v. Royal Sons, LLC, 2008 WL 4327296, at *5-6 (M.D. Fla. Sept. 17,
2008) (representations are deceptive under FDUTPA if they are likely to mislead
the consumer acting reasonably in the circumstances); Bober v. Glaxo Wellcome
Plc, 246 F.3d 934, 940 (7th Cir. 2001) (same; ICFA); Adamson v. Ortho-McNeil
Pharm., Inc., 463 F. Supp. 2d 496, 501-04 (D.N.J. 2006) (same; NJCFA); Andre
Strishak & Assocs. v. Hewlett Packard Co., 300 A.D.2d 608, 609 (N.Y. App. Div.
2002) (same; NYDTPA); Kussy v. Home Depot USA, 2006 WL 3447146, at *7
(E.D. Mich. Nov. 28, 2006) (same; MCPA); cf. Davis v. HSBC Bank Nev., N.A., 691
F.3d 1152, 1169 (9th Cir. 2012) (same; FTCA).
39
See Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242,
246 (9th Cir. 1990) ([W]e have recognized puffery in advertising to be claims
which are either vague or highly subjective. The common theme that seems to run
through [these] cases . . . is that consumer reliance will be induced by specific rather
than general assertions.); Rooney v. Cumberland Packing Corp., 2012 WL
1512106, at *3 (S.D. Cal. Apr. 16, 2012) (Generalized, vague, and unspecified as- 23 -

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actionable puffery because they lack the factual specificity on which any reasonable

consumer could rely. See, e.g., Presidio Enters., Inc. v. Warner Bros. Dist. Corp.,

784 F.2d 674, 678-81 (5th Cir. 1986) (statement that film would be a blockbuster

was puffery); Castillo, 268 A.D.2d at 336-37 (spectators could not reasonably rely

on statements predicting a sensational victory and the biggest fight of all time).

In fact, it would be unreasonable for a consumer to interpret these statements as an-

ything more than grandiose statements commonly made in boxing promotion. Cf.

Presidio, 784 F.2d at 684 (the puffery rule is particularly appropriate in the film

industry, where promoters deal more in hopes, dreams, and images).

10

Finally, Plaintiffs identify statements made by Pacquiaos trainer, Freddie

11

Roach. See Cal. Compl. 7 (Ive never seen [Pacquiao] in better shape . . . Hes

12

ready to fight and to win[.]); id. 73 (His speed is faster. His punches are hard-

13

er.); id. 104 (Manny could beat [Mayweather] with his right arm tied behind his

14

back.). But Roach is not a defendant and Plaintiffs offer no basisand there is

15

noneto hold any Defendant liable for his statements. Further, these statements are

16

also non-actionable puffery and say nothing about Pacquiao being injury-free.40

17
18

All Plaintiffs Lack Statutory Standing Because They Fail to


Adequately Plead Causation or Reliance

19

To have standing under each consumer fraud statute, Plaintiffs must plead a

20
21
22
23
24
25
26
27
28

2.

causal connection between the purported harm and the alleged misrepresentations.41
sertions constitute mere puffery upon which a reasonable consumer could not rely,
and hence are not actionable under the UCL, CLRA, or FAL); Viches v. MLT, Inc.,
124 F. Supp. 2d 1092, 1098 (E.D. Mich. 2000) (puffing cannot give rise to an action for fraud under Michigan law and thus is not actionable under the MCPA);
Bulbman v. Nev. Bell, 825 P.2d 588, 592 (Nev. 1992) (same under Nevada law);
Lateef v. Pharmavite, LLC, 2013 WL 1499029, at *3 (N.D. Ill. April 10, 2013)
(dismissing allegations for ICFA claim as mere puffery); Perret v. Wyndham Vacation Resorts, Inc., 889 F. Supp. 2d 1333, 1342 (S.D. Fla. 2012) (same; FDUTPA);
Adamson, 463 F. Supp. 2d at 503-04 (same; NJCFA); Lacoff v. Buena Vista Pub.,
Inc., 183 Misc.2d 600, 610 (N.Y. Sup. Ct. 2000) (same; NYDTPA).
40
Plaintiffs allegation that the Questionnaire had false and misleading responses,
Cal. Compl. 5, 81, also fails to support any claim. See supra IV.B., VI.A.1(a).
41
See Cal. Bus. & Prof. Code 17204 (private right of action for persons who suffer[] injury in fact and los[e] money or property as a result of UCL violations);
Cal. Civ. Code 1780(a) (same for those who suffer[] any damage . . . as a result
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For some statutes, they must also plead reliance on the alleged misrepresentations.42

A plaintiff fails to do either unless he alleges that he viewed specific material con-

taining the alleged misrepresentations prior to making a purchase. See Hall, 2015

WL 9659911, at *5-6 (UCL, CLRA, FDUTPA, and TDTPA claims dismissed for

failure to allege plaintiffs actually saw or read the challenged ads before making a

purchase).43 This is because it is factually impossible for misrepresentations to

cause a plaintiffs purchasing decision unless the plaintiff read them prior to the pur-

chase. Sony, 996 F. Supp. 2d at 1008.

This principle defeats all state statutory consumer fraud claims here because

10

no Plaintiff alleges that he or she ever saw or read any material containing the pur-

11

ported misrepresentations. Instead, all Plaintiffs broadly allege that they were ex-

12

posed to unspecified acts and omissions made by the Defendants, Cal. Compl.

13

32, see also id. 154, and that they relied on Defendants deceptive omissions of

14

material facts, id. 181. These conclusory allegations support no inference that

15
16
17
18
19
20
21
22
23
24
25
26
27
28

of CLRA violations); Fla. Stat. 501.211(2) (same for those who suffer[] a loss as
a result of FDUTPA violations); Mich. Comp. Laws 445.911 (same for MCPA);
815 ILCS 505/10a (same for those who suffer[] actual damage as a result of
ICFA violations); N.J. Stat. Ann. 56:8-19 (same for those who suffer[] any ascertainable loss . . . as a result of NJCFA violations); Conn. Gen. Stat. 42-110g(a)
(same for CUTPA); S.C. Code Ann. 39-5-140(a) (same for SCUTPA); Tenn. Code
Ann. 47-18-109(a)(1) (same for TCPA); N.Y. Gen. Bus. Law 349(h) (same for
those injured by reason of NYDTPA violations); Tex. Bus. & Com. Code
17.50(a) (same for TDTPA violations that constitute a producing cause of damages); Nev. Rev. Stat. 41.600(2)(e) (same for victim[s] of NDTPA violations); see
also Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651, 657-58 (D. Nev. 2009) (Implicit in [ 41.600(2)(e)] is a causation requirement).
42
See Hall, 2015 WL 9659911, at *3, *8, *16 (to have standing under the UCL,
CLRA, and TDTPA, plaintiffs must plead that they relied on the misleading materials); Sony, 996 F. Supp. 2d at 997 (dismissing MCPA claim for failure to plead
plaintiff actually relied on the alleged deception); Stefan v. Singer Island Condos.
Ltd., 2009 WL 426291, at *15 (S.D. Fla. Feb. 20, 2009) (same for FDUTPA claim);
Picus, 256 F.R.D. at 658 (causation includes reliance for affirmative misrepresentation claims under Nev. Rev. Stat. 41.600(2)(e)).
43
See also Slebodnik v. Reynolds and Reynolds Co., 2014 WL 6609132, at *8
(D.N.J. Nov. 20, 2014) (same for NJCFA claim); In re Hydroxycut Mktg. and Sales
Practices Litig., 2010 WL 2839480, at *5 (S.D. Cal. July 20, 2010) (same for
NYDTPA claim); McLaughlin v. LVNV Funding, LLC, 971 F. Supp. 2d 796, 801
(N.D. Ill. 2013) (ICFA claim dismissed for failure to plead a misrepresentation by
which [plaintiff] was actually deceived).
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Plaintiffs saw (or relied on) any specific material that contained the purported af-

firmative misrepresentations, or that did not disclose the allegedly concealed infor-

mation, prior to making a relevant purchase. See Parenteau, 2015 WL 1020499, at

*7 (allegation that plaintiff was exposed to various types of information failed to

plead reliance); Hall, 2015 WL 9659911, at *5-6 (allegation that defendant was en-

gaging in the alleged false advertising at time of plaintiffs purchases did not confer

standing absent allegations that they saw the alleged false advertising before the

purchases).44 This is particularly true since the vast majority of the alleged misrepre-

sentations were either made known to Plaintiffs after they made their purchases

10

(e.g., the Questionnaire) or published in third-party newspapers and websites uncon-

11

nected to forums where some (and in some cases all) Plaintiffs reside.45 Under these

12

circumstances, all state statutory consumer fraud claims must be dismissed for lack

13

of standing. See id.; nn.41-43.


3.

14

The California UCL and CLRA Claims Fail

The California Plaintiffs and Commercial Plaintiffs allege that all Defendants

15
16

violated the UCLs unfair, unlawful, and fraud prongs by not disclosing the

17

injury. See Cal. Compl. 188-90; Jammers Compl. 218-36. The California

18

Plaintiffs also assert a CLRA claim against all Defendants based on the same failure

19

to disclose theory, Cal. Compl. 224-65, and allege that the Pacquiao Defend-

20

ants violated all three UCL prongs by making affirmative misrepresentations, id.

21

218-20. All of these claims fail. As explained below, no UCL claim is adequately

22

pled,46 and claims based on PPV licenses fall outside the CLRAs scope.

23

44

24
25
26
27
28

See also Slebodnik, 2014 WL 6609132, at *8 (same for attempt to plead a causal
connection in only general and vague terms); Bronson v. Johnson & Johnson, Inc.,
2013 WL 1629191, at *2-3 (N.D. Cal. Apr. 16, 2013) (same for vague reference to
relying on marketing); Brownfield v. Bayer Corp., 2009 WL 1953035, at *4 (E.D.
Cal. July 6, 2009) (same for bare and vague conclusions that purchases were induced . . . based on [defendants] misrepresentations and omissions).
45
See, e.g., Cal. Compl. 7 & n.9 (alleged misrepresentations in Boxing News 24
and The Telegraph), 73 & n.51 (The Orange County Register, ABS-CBN News,
Sportstalk200.com), 74 (The Telegraph, Las Vegas Sun), 100 (The Philippine Star),
104 (The Los Angeles Times, Boxing News 24), 107 (The Los Angeles Times).
46
The CLRA claim is not adequately pled either since no actionable misrepresenta- 26 -

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2

a.

Plaintiffs Fail to Plead a UCL Unlawful Claim

To state a UCL unlawful claim, a plaintiff must plead with reasonable par-

ticularity facts showing a violation of another statute. Khoury v. Malys of Cal.,

Inc., 14 Cal. App. 4th 612, 619 (1993). If the predicate statutory violation is not ad-

equately pled, the derivative UCL claim also fails. Aleksick v. 7-Eleven, Inc., 205

Cal. App. 4th 1176, 1185 (2012).

Here, the UCL unlawful claims are based on alleged violations of the CLRA,

Lanham Act, and Californias False Advertising Law (FAL), Cal. Bus. & Prof.

Code 17500. See Cal. Compl. 218; Jammers Compl. 230-31. These alleged

10

predicate violations fail because Plaintiffs have not alleged a legally cognizable inju-

11

ry, fraud with particularity, or an actionable misrepresentation. See supra IV.-

12

IV.A.1. The CLRA and Lanham Act claims also fail for other, claim-specific rea-

13

sons, see infra VI.A.3(c), VI.C., as does the FAL claim because omission-based

14

claims are not cognizable under this statute. See Hodsdon v. Mars, Inc., 2016 WL

15

627383, at *4 (N.D. Cal. Feb. 17, 2016) (an FAL [claim] may not advance where

16

its crux is that the defendant did not make any statement at all); Norcia v. Sam-

17

sung Telecomms. Am., LLC, 2015 WL 4967247, at *8 (N.D. Cal. Aug. 20, 2015)

18

(dismissing omission-based FAL claim). Because the alleged predicate violations

19

fail, the UCL unlawful claims do too. See Aleksick, 205 Cal. App. 4th at 1185.

20
21

b.

Plaintiffs Fail to Plead a UCL Unfair Claim

Since the California Supreme Courts decision in Cel-Tech Commcns, Inc. v.

22

L.A. Cellular Telephone Co., 20 Cal. 4th 163 (1999), courts have applied two tests to

23

determine whether conduct is unfair under the UCL.47 One test requires that un-

24
25
26
27
28

tion is alleged. See supra VI.A.1. The same is true of the UCL fraud claim. Id.
47
Cel-Tech criticized as amorphous and vague the prior test for unfair conduct, which balanced the utility of a defendants conduct against the alleged harm
and evoked subjective notions of fairness. 20 Cal. 4th at 184-85. It thus articulated
a more precise test, holding that unfairness must be tethered to some legislatively
declared policy or proof of some actual or threatened impact on competition. Id. at
185-87. But Cel-Tech involved an unfair competition claim; its application to consumer claims was uncertain. Id. at 187 n.12. Nevertheless, Cel-Tech signaled an
overall narrowing of what constitutes unfair conduct, Gregory v. Albertsons Inc.,
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fairness claims based on public policy be tethered to specific constitutional, statu-

tory or regulatory provisions. Gregory, 104 Cal. App. 4th at 853. The other test

draws on interpretations of the FTCA and requires a plaintiff to plead (1) substan-

tial consumer injury, (2) that is not outweighed by any countervailing benefits

to consumers or competition, and (3) which the consumer could not reasonably

have avoided. Camacho v. Auto. Club of S. Cal., 142 Cal. App. 4th 1394, 1403

(2006). Plaintiffs allegations do not meet either test.

The California Plaintiffs try to plead a claim under the first test, alleging that

Defendants omissions and the Pacquiao Defendants affirmative misrepresenta-

10

tions violate[] established public policy intended to regulate the fair and ethical sale

11

of goods and services to consumers as set forth in the CLRA. Cal. Compl. 189,

12

219. But the CLRA does not apply here. See infra VI.A.3(c). Because the Califor-

13

nia Plaintiffs claims cannot be tethered to anything in the CLRA (let alone a spe-

14

cific policy in that statute), their unfairness claim based on that statute fails. See

15

Scripps, 108 Cal. App. 4th at 940; Gregory, 104 Cal. App. 4th at 853.48

16

The Commercial Plaintiffs attempt to plead an unfairness claim under the

17

FTCA test fares no better. See Jammers Compl. 218-23. First, the Commercial

18

Plaintiffs allege no legally cognizable injury (see supra IV, infra VI.C.), much

19

less a substantial one. See Woods v. Google, Inc., 889 F. Supp. 2d 1182, 1195

20

(N.D. Cal. 2012) (UCL unfair claim dismissed for failure to plead a cognizable in-

21

jury); Camacho, 142 Cal. App. 4th at 1405 (same). Second, the Commercial Plain-

22

tiffs concede they received countervailing benefits by alleging that Defendants

23

promotion led to unprecedented interest in the Fight and a record audience at their

24
25
26
27
28

104 Cal. App. 4th 845, 854 (2002), and some courts have applied it to consumer
claims, id.; Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917 (2003).
48
Even if the CLRA did apply, this claim would still fail because nothing in that
statute (or any other law) provides the California Plaintiffs with the purported right
on which their claims are based: the public disclosure of medical information about
Pacquiao. See supra VI.A.1(a); Bardin, 136 Cal. App. 4th at 1273 (UCL unfair
claim dismissed where the right upon which it depended was not based on a
legislatively declared policy, since [n]o law generally provided the right).
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businesses. Jammers Compl. 20; see also id. 56-64; id. 190 (discussing ad-

mission prices or cover charges for bar attendees). And third, the Commercial

Plaintiffs could have reasonably avoided their alleged injuries since reasonable con-

sumers know that boxers compete with injuries, see supra IV.B., and the Com-

mercial Plaintiffs could have opted not to purchase the Fight. Cf. Camacho, 142 Cal.

App. 4th at 1405 (injury is not reasonably avoidable only where consumers could

not have reasonably anticipated [it], if they did not have the means to avoid [it], or if

their free market decisions were unjustifiably hampered).


c.

PPV Licenses Fall Outside the CLRAs Scope

10

The CLRA proscribes certain practices in transactions intended to result or

11

which result[] in the sale or lease of goods or services. Cal. Civ. Code 1770(a).

12

Goods means tangible chattels bought or leased for use primarily for personal,

13

family, or household purposes. Id. 1761(a). Services means work, labor, and

14

services for other than a commercial or business use, including services furnished in

15

connection with the sale or repair of goods. Id. A PPV license meets neither defini-

16

tion since it has no tangible or intrinsic valueit simply offers a license to view an

17

event. See Hall, 2015 WL 9659911, at *15 ([T]o hold that [admission] tickets . . .

18

constitute a service [under the CLRA] requires a strained and unnatural construction

19

of the term.); Lazebnik v. Apple, Inc., 2014 WL 4275008, at *4-5 (N.D. Cal. Aug.

20

29, 2014) (a [s]eason [p]ass to view a television series is not a good under the

21

CLRA because it is either software or a license, not a tangible chattel). Because

22

PPV licenses fall outside the CLRAs scope, the CLRA claim fails.

23
24
25

4.

The Florida DUTPA Claims Fail


a.

Plaintiffs Fail to Allege Deceptive Conduct in Florida

To state a FDUTPA claim, a plaintiff must allege facts showing deceptive

26

activities occurring in Florida. In re Clorox Consumer Litig., 2013 WL 3967334,

27

at *9 (N.D. Cal. July 31, 2013); see also Five for Entmt S.A. v. Rodriguez, 877 F.

28

Supp. 2d 1321, 1330 (S.D. Fla. 2012) (FDUTPA applies only to actions that oc- 29 -

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curred within the state of Florida.). In false advertising cases like this, deception

does not occur in Florida unless the plaintiff viewed the deceptive advertising, and

made her purchase, there. See Clorox, 2013 WL 3967334, at *9 (FDUTPA claim

dismissed for failure to allege where plaintiffs viewed the allegedly deceptive ad-

vertising or purchased [the product]).

Here, the Florida Plaintiffs fail to plead facts showing any relevant deceptive

conduct in Florida. Instead, they assert conclusory allegations about Defendants

nationwide marketing campaign, without identifying any deceptive ads dissemi-

nated in Florida that they viewed. See Fla. Compl. 20, 57; supra VI.A.2. And

10

while Plaintiffs allege that HBO telecasted At Last in all states, including Florida,

11

Fla. Compl. 123, they do not challenge any statements made in this documentary

12

or even allege that they viewed it. These pleading failures defeat the FDUTPA

13

claims. See Clorox, 2013 WL 3967334, at *9.

14
15
16

b.

Plaintiffs Fail to Plead a Deceptive, Unfair, or Unconscionable Act

The FDUTPA claims also fail because the Florida Plaintiffs do not adequately

17

allege any deceptive, unfair, or unconscionable act. Fla. Stat. 501.204(1)

18

(proscribing unconscionable acts or practices, and unfair or deceptive acts or prac-

19

tices). The Florida Plaintiffs assert FDUTPA claims under all three prongs. See Fla.

20

Compl. 185-86, 201-03, 211. All are based on two theories: Defendants alleged

21

fail[ure] to disclose to Plaintiffs Pacquiaos injuries, id. 186, and the Pacquiao

22

Defendants alleged misrepresentations about Pacquiaos health, id. 201-03,

23

211. As discussed above, all claims based on these theoriesincluding under the

24

FDUTPAfail because no Defendant had a duty to disclose Pacquiaos injury and

25

no Plaintiff alleges an actionable misrepresentation. See supra VI.A.1. & nn.29, 39

26

(citing Virgilio and Perret).

27
28

The unfairness claim also fails because the Florida Plaintiffs must, but do
not, plead facts showing that Defendants alleged conduct offends established pub- 30 -

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lic policy and is immoral, unethical, oppressive, unscrupulous or substantially in-

jurious to consumers. N. Am. Clearing, Inc. v. Brokerage Comput. Sys., Inc., 666 F.

Supp. 2d 1299, 1310 (M.D. Fla. 2009). In fact, the Florida Plaintiffs merely recite

the definition of unfair practices without explaining what public policies (estab-

lished or otherwise) Defendants allegedly offended or what was immoral, unethi-

cal, unscrupulous, or substantially injurious about any Defendants conduct. Fla.

Compl. 185; see id. 181-212. That conclusory allegation is insufficient. See

Begualg Inv. Mgmt. Inc. v. Four Seasons Hotel Ltd., 2011 WL 4434891, at *5 (S.D.

Fla. Sept. 23, 2011) (dismissing FDUTPA claim that provide[d] only conclusory

10

allegations as to the alleged unfair practices); HW Aviation LLC v. Royal Sons,

11

LLC, 2008 WL 4327296, at *6 (M.D. Fla. Sept. 17, 2008) (same).


5.

12

The Nevada DTPA and CFA Claims Fail

The Nevada Plaintiff and Attendee Plaintiffs assert claims under the NCFA,

13
14

see Nev. Compl. 179, 181, 196, 200, 214, Dehart Compl. 170, which provides a

15

private right of action for violations of the NDTPA. See Nev. Rev. Stat. 41.600(1)-

16

(2). Specifically, they allege that all Defendants violated a provision of the NDTPA,

17

Nev. Rev. Stat. 598.0923(2), by not disclosing the injury. See Nev. Compl.

18

184(b), 186; Dehart Compl. 180, 184-85.49 The Nevada Plaintiff also claims that

19

the Pacquiao Defendants violated four other NDTPA provisions, Nev. Rev. Stat.

20

598.0915(5), (7), (9), and (15), by making affirmative misrepresentations of fact.

21

Nev. Compl. 204(a)-(d).50 All claims based on these theoriesincluding under the

22

NDTPA and NCFAfail because no Defendant had a duty to disclose the injury

23

and no Plaintiff alleges an actionable misrepresentation. See supra VI.A.1. &

24

49

25
26
27
28

See also Nev. Rev. Stat. 598.0923(2) (proscribing knowingly . . . [f]ail[ing] to


disclose certain facts). The Nevada Plaintiff also claims that the alleged nondisclosures violated Nev. Rev. Stat. 598.0915(7) (Nev. Compl. 184(a)), but only affirmative misrepresentations are actionable under that provision. See Nev. Rev. Stat.
598.0915(7) (proscribing [r]epresent[ing] that goods or services for sale or
lease have particular attributes, when they do not) (emphasis added).
50
See also Nev. Rev. Stat. 598.0915(5), (7), (9), (15) (proscribing certain false
representations and [a]dvertis[ing] goods or services with intent not to sell or
lease them as advertised).
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nn.29, 39 (citing Mallory and Bulbman). Furthermore, Plaintiffs allegations do not

fit within the framework of the NDTPA because no goods or services are at issue.

Both Nev. Rev. Stat. 598.0915(7) and 598.0923(2) relate specifically to the sale

or lease of goods or services. Plaintiffs make the conclusory allegation that the PPV

licenses and/or tickets were goods or services, but that does not make them so.

Nev. Compl. 182; Dehart Compl. 182. While neither the statute nor case law de-

fines the term goods or services, such licenses and tickets are neither tangible or

movable personal property nor [l]abor performed in the interest or under the direc-

tion of others. GOOD and SERVICE, Blacks Law Dictionary (10th ed. 2014); cf.

10

supra IV.A.3(c). (citing Hall and Lazebnik).


6.

11

The Michigan CPA Claims Fail

The Michigan Plaintiff asserts two claims under the MCPA: (1) one alleging

12
13

Defendants violated Mich. Comp. Laws 445.903(s) by failing to disclose the inju-

14

ry, Mich. Compl. 183-84; and (2) another alleging that the Pacquiao Defend-

15

ants violated Mich. Comp. Laws 445.903(cc) by making misrepresentations of

16

fact, id. 203.51 These claims fail because no Defendant had a duty to disclose the

17

injury and no Plaintiff alleges an actionable misrepresentation. See supra VI.A.1.

18

& nn.29, 39 (citing Hendricks and Viches).


The 445.903(cc) claim also fails because this provision applies to omission-

19
20

based claims only. See n.51; Zine v. Chrysler Corp., 600 N.W.2d 384, 397 (Mich.

21

Ct. App. 1999) (noting 445.903(cc) involve[s] omissions).


7.

22

The New Jersey CFA Claims Fail

The Court should dismiss the NJCFA claims because the New Jersey Plain-

23
24

tiffs fail to plead facts showing unlawful conduct by the [D]efendants. District

25

1199P Health & Welfare Plan v. Janssen, L.P., 784 F. Supp. 2d 508, 530 (D.N.J.

26

2011). Under the NJCFA, unlawful conduct falls into three general categories: af-

27
28

51

See Mich. Comp. Laws 445.903(s) (proscribing certain [f]ail[ures] to reveal a


material fact); id. 445.903(cc) (same).
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firmative acts, knowing omissions, and violations of regulations promulgated under

the NJCFA. Slebodnik, 2014 WL 6609132, at *4 & n.8. The New Jersey Plaintiffs

assert claims under the first two categories. Both fail.

First, the New Jersey Plaintiffs claim that the Pacquiao Defendants violated

the NJCFA through affirmative acts. [S]ix types of affirmative acts . . . are deemed

unlawful [under the NJCFA]: unconscionable commercial practices, acts of decep-

tion, fraud, false pretenses, false promises, and affirmative misrepresentation. Id.;

see also N.J. Stat. Ann. 56:8-2 (proscribing these acts). The New Jersey Plaintiffs

allege that the Pacquiao Defendants engaged in all six types of acts, N.J. Compl.

10

213-14, by using or employing false pretenses and misrepresentations of fact,

11

id. 205, see id. 206-14. Plaintiffs failure to plead an actionable representation

12

defeats any claim based on such acts. See supra VI.A.1(b) & n.39 (citing Ad-

13

amson); Rodio v. Smith, 587 A.2d 621, 624 (N.J. 1991) (puffery does not amount

14

to deception, false promise, misrepresentation, or any other unlawful practice with-

15

in the ambit of the [NJCFA]).


Further, while unconscionable commercial practices include fraudulent

16
17

business practices beyond making misleading statements,52 the New Jersey Plaintiffs

18

plead no such practices. Instead, they base their claim that the Pacquiao Defend-

19

ants committed unconscionable commercial practices on allegedly misleading

20

statements and omissions. See N.J. Compl. 213 (Defendants knowingly, decep-

21

tively, and intentionally chose not to disclose Pacquiaos serious shoulder injury . . .

22

. Such disclosure . . . was necessary to make other statements, advertisements and

23

promotions truthful.); id. 214 (By way of the foregoing, . . . the Pacquiao De-

24

52

25
26
27
28

See Yingst v. Novartis AG, 63 F. Supp. 3d 412, 415-16 (D.N.J. 2014) (The phrase
unconscionable commercial practice . . . evidenc[es] a more expansive reach than
deception alone. . . . [T]he New Jersey Supreme Court has described unconscionable commercial practice as an act lacking good faith, honesty in fact and observance
of fair dealing.); Slebodnik, 2014 WL 6609132, at *5 (The New Jersey Supreme
Court has reasoned that unconscionability is an amorphous concept obviously designed to establish a broad business ethic. . . . Critically, an unconscionable commercial practice must be misleading and stand outside the norm of reasonable business practice in that it will victimize the average customer.).
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fendants knowingly engaged in an unconscionable commercial practice . . . .). Be-

cause the unconscionability claim hinges on these allegations, the failure to allege

an actionable misrepresentation defeats it. See Viking Yacht Co., Inc. v. Composite

One LLC, 385 F. Appx 195, 200-01 (3d Cir. 2010) (because unconscionability

claim hinge[d] on the fact that [defendant] did not disclose information, [w]hat

plaintiffs claim[ed] [were] unconscionable business practices [were] actually claims

of omissions and failed since no actionable omission was shown).

Second, the New Jersey Plaintiffs claim that all Defendants violated the

NJCFA by not disclosing Pacquiaos injury. See N.J. Compl. 184-86. This claim

10

fails because Defendants had no duty to disclose this information. See supra

11

VI.A.1. & n.29 (citing Arcand).


8.

12

The New York DTPA Claims Fail

13

The New York Plaintiffs and Commercial Plaintiffs claim that Defendants vi-

14

olated the NYDTPA by not disclosing the injury. See N.Y. Compl. 187-89; Jam-

15

mers Compl. 243-45. The New York Plaintiffs also claim that the Pacquiao De-

16

fendants violated this statute by making affirmative misrepresentations. N.Y.

17

Compl. 204-08. These claims fail because no Defendant had a duty to disclose

18

the injury and no Plaintiff alleges an actionable misrepresentation. See supra

19

VI.A.1. & nn.29, 39 (citing Schwarz and Lacoff).


They also fail because Plaintiffs plead no facts showing any deception of a

20
21

consumer . . . occur[ing] in New York. Goshen v. Mut. Life Ins. Co. of N.Y., 774

22

N.E.2d 1190, 1195 (N.Y. 2002); see N.Y. Gen. Bus. Law 349 (proscribing decep-

23

tive acts in this state). In false advertising cases like this, deception does not oc-

24

cur in New York unless the plaintiff received the deceptive statement, and made

25

her purchase, there. Goshen, 774 N.E. 2d at 1196 (NYDTPA claim dismissed where

26

plaintiff received deceptive information outside New York).53 Here, the New York

27
28

53

See Clorox, 2013 WL 3967334, at *7; In re Hydroxycut Mktg. and Sales Practices
Litig., 2010 WL 1734948, at *4 (S.D. Cal. April 26, 2010); Chiste, 756 F. Supp. 2d
at 402-03 (same for failure to plead both that plaintiff saw the challenged ads and
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Plaintiffs and Commercial Plaintiffs fail to plead facts showing any relevant decep-

tive conduct in New York. Indeed, they assert conclusory allegations about Defend-

ants nationwide marketing campaign, without identifying any deceptive ads dis-

seminated in New York that they viewed. See N.Y. Compl. 20, 58; Jammers

Compl. 20, 56; supra VI.A.2. And while Plaintiffs allege that HBO telecasted

At Last in all states, including New York, N.Y. Compl. 123, Jammers Compl.

121, they do not challenge any statements made in this documentary or even allege

that they viewed it. These pleading failures defeat the NYDTPA claims. See Hy-

droxycut, 2010 WL 2839480, at *6 (It is irrelevant whether part of the deceptive

10

conduct took place in New York because it is the transaction at issue that must have

11

occurred [there].); supra n.53.

12
13

9.

The Illinois CFA Claims Fail

The Illinois Plaintiffs assert claims against all Defendants under the ICFAs

14

deceptive and unfair prongs. Ill. Compl. 188-89; see also 815 ILCS 505/2

15

(proscribing [u]nfair methods of competition and unfair or deceptive acts or prac-

16

tices). Both claims are based on the same theories: purported omissions about

17

Pacquiaos injury, Ill. Compl. 186-87, see id. 183, and alleged affirmative mis-

18

representations about his health, id. 182-84, 186-87. These claims fail because no

19

Defendant had a duty to disclose the injury and no Plaintiff alleges an actionable

20

misrepresentation. See supra VI.A.1. & nn.29, 39 (citing Virgilio and Lateef).

21

The unfair practices claim also fails because the Illinois Plaintiffs must, but

22

do not, plead facts showing that the alleged misconduct (1) offends public policy,

23

(2) is immoral, unethical, oppressive, or unscrupulous, and (3) causes substantial

24

injury to consumers. Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 961

25

(Ill. 2002); see Garrett v. RentGrow, Inc., 2005 WL 1563162, at *3 (N.D. Ill. July 1,

26

2005) (same). In fact, the Illinois Plaintiffs do not allege that any Defendants con-

27

duct was immoral, unethical, oppressive, or unscrupulous. And they merely assert

28

made a purchase in New York).


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that the alleged conduct offend[s] public policy and caused substantial injury to

consumers, without identifying the purported public policy or substantial injury. Ill.

Compl. 189. That conclusory allegation is insufficient. See Garrett, 2005 WL

1563162, at *3 (ICFA unfair claim dismissed for failure to point to any established

statute or common law doctrine delineating an offended public policy); Robinson,

775 N.E.2d at 963 (a bare assertion of unfairness without describing in what man-

ner the [conduct] violate[s] public policy or [is] oppressive is insufficient).


10.

The Tennessee CPA Claim Fails


a.

The TCPA Expressly Bars Class Action Claims

The Tennessee Plaintiff asserts a putative class claim under the TCPA. Tenn.

10
11

Compl. 178-99. But Tennessee law is clear that a plaintiff may not bring a

12

TCPA claim on behalf of a class. Bearden v. Honeywell Intl Inc., 2010 WL

13

3239285, at *8-10 (M.D. Tenn. Aug. 16, 2010); see Tenn. Code Ann. 47-18-

14

109(a)(1) (persons may bring an action individually under the TCPA). This bar on

15

TCPA class claims applies in diversity cases under Shady Grove Orthopedic Associ-

16

ates v. Allstate Insurance Co., 559 U.S. 393 (2010). See Tait v. BSH Home Appli-

17

ances Corp., 2011 WL 1832941, at *8 (C.D. Cal. May 12, 2011) (holding so).54
Plaintiffs suggest that Shady Grove should not apply, citing Hydroxycut.

18
19

Tenn. Compl. 181. That case declined to dismiss putative TCPA (and SCUTPA)

20

class claims, holding that Rule 23 govern[ed] them. Hydroxycut, 299 F.R.D. at

21

654. But Hydroxycut does not undercut Shady Groves central lessons. In Shady

22

Grove, the United States Supreme Court held that a New York statute barring class

23

actions in suits seeking statutory minimum damages did not preclude class claims in

24

federal court. 559 U.S. at 408. The Court, however, was fractured. In a concurring

25

opinion, Justice Stevens concluded that Rule 23 cannot displace a state law that is

26

procedural in the ordinary use of the term but is so intertwined with a state right or

27

54

28

See also Target Corp. Customer Data Sec. Breach Litig., 66 F. Supp. 3d 1154,
1165 (D. Minn. 2014), In re Ford Tailgate Litig., 2014 WL 1007066, at *9 (N.D.
Cal. Mar. 12, 2014), Bearden, 2010 WL 3239285, at *10 (same).
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remedy that it functions to define the scope of the state-created right. Id. at 423. He

found that the statute did not defin[e] New Yorks rights or remedies because it

also regulated claims under other jurisdictions laws. Id. at 431.

[T]he majority of courts to have addressed the issue have determined that

Justice Stevenss concurrence is the controlling opinion in Shady Grove. Target

Corp., 66 F. Supp. 3d at 1165 (collecting cases); see Tait, 2011 WL 1832941, at *8

(holding the same). And under Justice Stevenss approach, the TCPAs class ac-

tion bar applies in federal court because it is so intertwined with that statutes rights

and remedies that it functions to define the scope of [] substantive rights. Bearden,

10

2010 WL 3239285, at *10; see supra n.54. Hydroxycut does not abrogate this au-

11

thority. In fact, that case justified its holding by applying pre-Shady Grove cases

12

because it [did] not believe Justice Stevens opinion [was] the controlling one or

13

that Shady Grove provided much guidance. Hydroxycut, 299 F.R.D. at 652-53.

14

This Court can and should decline to follow that outlier approach.

15
16

b.

Plaintiff Fails to Plead an Unfair or Deceptive Act

The Court should also dismiss the individual TCPA claim for failure to allege

17

facts showing Defendants engaged in an unfair or deceptive act or practice under

18

this statute. See Tucker, 180 S.W.3d at 115. The Tennessee Plaintiff alleges that De-

19

fendants violated six subsections of the TCPA. Tenn. Compl. 187 (citing Tenn.

20

Code Ann. 47-18-104(b)(2)-(3), (5), (7), (9), (21)). For all six, he bases his claim

21

on Defendants purported omissions about Pacquiaos injury. Id. 183. But only

22

affirmative misrepresentations are actionable under three of the subsections. See

23

Tenn. Code Ann. 47-18-104(b)(5), (7) (proscribing certain represent[ations]); id.

24

47-18-104(b)(21) (proscribing certain statements or illustrations). And the al-

25

leged omissions did not violate any TCPA subsection because Defendants had no

26

duty to disclose the injury. See supra VI.A.1; Cirzoveto, 625 F. Supp. 2d at 632

27

(the failure to disclose a fact one ha[s] no duty to disclose is not unfair or decep-

28

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bile/GMC, Inc., 160 S.W.3d 874, 881 (Tenn. Ct. App. 2004) (TCPA claim dismissed

where defendant had no duty to disclose)).


Additionally, the Tennessee Plaintiff fails to specify the facts underlying any

3
4

purported violation of the six subsections. Each of the subsections proscribes as

many as 11 types of representations; together, they proscribe three dozen. See Tenn.

Compl. 187. Yet, the Tennessee Plaintiff broadly alleges that Defendants violat-

ed all six subsections, without connecting any Defendants alleged activities to the

proscribed representations in any subsection. This entirely obscures the TCPA

claim, leaving Defendants to guess as to the basis of the supposed TCPA violations.

10

In fact, some of the subsections have no apparent connection to this case.55 These

11

pleading defects also require dismissal of the TCPA claim. See LeBlanc v. Bank of

12

Am., 2013 WL 3146829, at *7 (W.D. Tenn. June 18, 2013) (dismissing TCPA claim

13

that failed to allege how the [alleged conduct] [was] unfair or deceptive under any

14

provision of the TCPA).


11.

15

The South Carolina UTPA Claim Fails

16

Like the TCPA, the SCUTPA expressly prohibit[s] class action relief, and

17

this bar applies here under Shady Grove. Stalvey v. Am. Bank Holdings, Inc., 2013

18

WL 6019320, at *4 (D.S.C. Nov. 13, 2013) (SCUTPA class claims dismissed under

19

Justice Stevenss controlling opinion in Shady Grove because the class action bar

20

is ingrained in the very text of SCUTPA and is thus substantive state law not

21

trumped by Rule 23); see S.C. Code Ann. 39-5-140(a) (persons may bring an

22

action individually, but not in a representative capacity, under SCUTPA).56 Thus,

23

this Court should dismiss the SCUTPA putative class claim. Id.57

24

55

25
26
27
28

For example, 47-18-104(b)(2) forbids misrepresenting the source, sponsorship,


approval, or certification of goods or services, and 47-18-104(b)(3) forbids misrepresenting the affiliation, connection or association with, or certification by, another. Tenn. Compl. 187. The Tennessee Complaint does not mention any such
misrepresentations or explain how these subsections even apply here.
56
See also In re TD Bank, N.A., 2015 WL 8493979, at *27 (D.S.C. Dec. 10, 2015)
(class claims barred by 140(a)); Target, 66 F. Supp. 3d at 1163-65 (same); In re
Auto. Parts Antitrust Litig., 29 F. Supp. 3d 982, 1013 (E.D. Mich. 2014) (same).
57
The South Carolina Plaintiffs reliance on Hydroxycut to avoid this result, S.C.
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The Court should also dismiss the individual SCUTPA claim for failure to

plead facts showing an unfair or deceptive act that affected the public interest,

as required for such claims. Health Promotion, 743 S.E.2d at 816.

First, the South Carolina Plaintiff asserts a claim under SCUTPAs unfair

and deceptive prongs premised on purported omissions about Pacquiaos injury.

S.C. Compl. 184; see id. 187, 193-97, 200; S.C. Code Ann. 39-5-20(a) (pro-

scribing [u]nfair methods of competition and unfair or deceptive acts or practices).

As with other claims based on this theory, the SCUTPA claim fails because no De-

fendant had such a duty. See supra VI.A.1. & n.29 (citing Ardis).

10

The SCUTPA unfair practices claim also fails because the South Carolina

11

Plaintiff pleads no facts showing unfair conduct by any Defendant. An act is un-

12

fair when it is offensive to public policy or when it is immoral, unethical, or op-

13

pressive. Health Promotion, 743 S.E.2d at 816. The South Carolina Plaintiff does

14

not allege that any Defendants conduct offended public policy or was immoral, un-

15

ethical, or oppressive, much less offer the requisite factual allegations to support

16

such a claim. See S.C. Compl. 178-200; Anderson v. USAA Fed. Sav. Bank, 2013

17

WL 4776728, at *4 (D.S.C. Sept. 4, 2013) (dismissing SCUTPA claim for fail[ure]

18

to sufficiently allege each requisite element).

19

Second, the South Carolina Plaintiff fails to plead that any unfair or deceptive

20

act impacted the public interest. An act impacts the public interest if it [has]

21

the potential for repetition. Lighthouse Grp., LLC v. Strauss, 2016 WL 562100, at

22

*4 (D.S.C. Feb. 12, 2016). This can be shown by either [1] showing the same kind

23

of actions occurred in the past, thus making it likely they will continue to occur ab-

24

sent deterrence or [2] showing the companys procedures created a potential for rep-

25

etition of the unfair and deceptive acts. Id. Here, the only relevant allegation is that

26

Defendants alleged omissions were repeated with respect to numerous Class

27

members [PPV] transactions. S.C. Compl. 184. But, even if the same omissions

28

Compl. 182, is wrong for the reasons discussed above. See supra VI.A.10(a).
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affected multiple purchasers, this does not show that any Defendant committed the

same kind of actions in the past or has procedures creat[ing] a potential for repeti-

tion in the future. The allegation thus fails to show a potential for repetition.

Lighthouse, 2016 WL 562100, at *4-5 (SCUTPA claim dismissed on this ground).58


12.

The Texas DTPA Claims Fail


a.

Plaintiffs Claims Fall Outside the TDTPAs Scope

As the Fifth Circuit recently held, the TDTPA does not extend to claim[s] of

failure to perform as promised under a contract. Shakeri v. ADT Sec. Servs., Inc.,

816 F.3d 283, 295 (5th Cir. 2016). A TDTPA claim thus may not ultimately rest[]

10

on the allegation that [a defendant] falsely advertised a good or service would be of

11

a particular quality or grade, when the [good or service], in fact, did not work as it

12

was supposed to under the contract. Id. Such allegations effectively amount to a

13

mere breach of contract that, without more, do[] not constitute a false, misleading

14

or deceptive act under the TDTPA. Id. Whether this bar applies depends on the

15

source of the defendants duty to act and the nature of the remedy sought by the

16

plaintiff. Malsom v. Match.com, L.L.C., 540 F. Appx 412, 415 (5th Cir. 2013). If

17

the alleged duty arises out of a contract or if the plaintiff seek[s] to recover the ben-

18

efit of [his] perceived bargain under a contract, the TDTPA does not apply. Robin-

19

son v. Match.com, L.L.C., 2012 WL 5007777, at *6 (N.D. Tex. Oct. 17, 2012), affd

20

sub nom. Malsom, 540 F. Appx 412.


The TDTPA claim here violates both rules. First, the Texas Plaintiffs claims

21
22

rest on the allegation that they did not obtain the value of their PPV purchases,

23

Tex. Compl. 195, due to Defendants failure to disclose Pacquiaos injury, id.

24

183, 185, 188, 191. Because Defendants purported duty to make these disclo-

25

58

26
27
28

See also Companion Property v. U.S. Bank Natl Assn, 2015 WL 7568613, at *9
(D.S.C. Nov. 24, 2015) (SCUTPA claim dismissed for failure to plead specific
facts showing alleged conduct was the result of standard procedures or business
practices that impact public interest); Morgan v. HSBC Bank USA, Natl Assn,
2015 WL 3888412, at *4 (D.S.C. June 24, 2015) (same for failure to plead specific
facts showing plaintiffs experience is likely to be the experience of others or
the alleged conduct is standard business practice for defendant).
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sures arose out of Plaintiffs purchases of the PPV broadcast, id. 146-47, which

were made pursuant to contractual agreements with cable providers, id. 22, the

TDTPA is inapplicable. See Shakeri, 816 F.3d at 295; Malsom, 540 F. Appx at 415.

Second, Plaintiffs seek compensatory damages for the TDTPA claims measured

by the cost of the [PPV] showing. Tex. Compl. 200. This type of damages is una-

vailable. See Robinson, 2012 WL 5007777, at *6.


b.

7
8

Plaintiffs Plead No Deceptive or Unconscionable Act

Plaintiffs must, but fail to, support their TDTPA claims with allegations

showing Defendants either [1] engaged in false, misleading or deceptive acts, that

10

is, violated a specific laundry-list provision of section 17.46 . . . , or [2] engaged in

11

an unconscionable action or course of action. Id. at *8.

12

First, the Texas Plaintiffs assert that Defendants purported failure to disclose

13

the injury was unconscionable as well as false, misleading, and/or deceptive un-

14

der Tex. Bus. & Com. Code 17.46(b)(9) and (24). Tex. Compl. 182-85, 198.

15

Because Defendants had no duty to make such disclosures, see supra VI.A.1. &

16

n.29 (citing Goddard), these claims fail. See also Robinson, 2012 WL 5007777, at

17

*11 (defendants failure to act was not unconscionable where defendant had no

18

duty to take the action).

19

Second, the TDTPA unconscionable claim also fails because the Texas

20

Plaintiffs allege none of the requisite elements, including that Defendants committed

21

an act or practice [that], to [Plaintiffs] detriment: (A) [took] advantage of the lack

22

of knowledge, ability, experience, or capacity of [Plaintiffs] to a grossly unfair de-

23

gree; or (B) result[ed] in a gross disparity between the value received and considera-

24

tion paid, in a transaction involving transfer of consideration. Id. at *4 (quoting

25

Tex. Bus. & Com. Code 17.45(5)); see Tex. Compl. 177-200.

26

B.

27

The Puerto Rico Plaintiffs assert a claim for fraudulent concealment, P.R.

28

The Fraudulent Concealment Claim Fails

Compl. at 65, alleging that Defendants failure to disclose the injury violated
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Puerto Rico statutory and common law. Id. 152. But Puerto Rico has a civil law

system that does not recognize common law fraud claims. See Ocaso, 915 F. Supp.

at 1262 (the Puerto Rico Supreme Court has specifically held that actions sounding

in tort are governed by civil law precepts; question[ing] the validity of a common

law fraud claim); cf. In re San Juan Dupont Plaza Hotel Fire Litig., 687 F. Supp.

716, 726 (D.P.R. 1988) ([T]he [Puerto Rico] Civil Code itself is the mandatory

starting point in the analysis of Puerto Rico tort law.). Further, no Puerto Rican

statute is cited to support the fraudulent concealment claim. See P.R. Compl.

179-94. This requires dismissal of the claim. See Waters v. Howard Sommers Tow-

10

ing, Inc., 2011 WL 1375576, at *3 (C.D. Cal. Apr. 11, 2011) (dismissing claim for

11

failure to allege a statute upon which to base [it]); Mendez v. Oakmont Mortg. Co.,

12

Inc., 2010 WL 4818000, at *2 (S.D. Cal. Nov. 22, 2010) (same where plaintiffs

13

fail[ed] to identify the legal basis of the claim).

14
15
16

C.

The Lanham Act Claim Fails


1.

The Commercial Plaintiffs Lack Statutory Standing

To have standing for a Lanham Act false advertising claim, a plaintiff must

17

(1) fall in the Acts zone of interests, and (2) allege economic or reputational in-

18

jury proximately caused by the deception. Lexmark Intl, Inc. v. Static Control

19

Components, Inc., 134 S. Ct. 1377, 1391 (2014). Neither requirement is met here.

20

First, Plaintiffs are not in the Acts zone of interests. To fall within this

21

zone, a plaintiff must allege an injury to a commercial interest in reputation or

22

sales. Id. at 1390. A plaintiff suing as a deceived consumer is not within this

23

zone, id. at 1393, because a Lanham Act claim is for competitors, not consumers,

24

POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2234 (2014). Thus, con-

25

sumers allegedly hoodwinked into purchasing a disappointing product . . . cannot

26

invoke the protection of the Lanham Act. Lexmark, 134 S. Ct. at 1390. This rule

27

applies to individuals and businesses alike. Id. (Even a business misled by a suppli-

28

er into purchasing an inferior product is . . . not under the Acts aegis.); Locus Tele- 42 -

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commcns, Inc. v. Talk Glob., LLC, 2014 WL 4271635, at *2-3 (D.N.J. Aug. 28,

2014) (dismissing Lanham Act claim between businesses under Lexmark).

Here, the Commercial Plaintiffs sue Defendants not as competitors but as al-

legedly deceived consumers. Indeed, the Commercial Plaintiffsrestaurants and

sports barsare in different industries from Defendants and cannot plausibly be

viewed as their competitors. Moreover, the Commercial Plaintiffs base their claims

on allegations that they were misled when purchasing CC licenses and did not re-

ceive what they paid for. See Jammers Compl. 159 (Commercial Plaintiffs are the

victims of a bait and switch they were sold what was marketed as a legitimate

10

sporting event between two uninjured opponents but given something materially dif-

11

ferent.). Because the Commercial Plaintiffs claim they were hoodwinked into pur-

12

chasing a disappointing product, they are suing as consumers and thus fall outside

13

the Lanham Acts zone of interests. Lexmark, 134 S. Ct. at 1390.

14

Locus is instructive here. There, the plaintiff purchased for resale a product

15

that was supposed to add minutes to prepaid cell phones. When the product did not

16

work as advertised, the plaintiff asserted a Lanham Act claim against the seller for

17

injuries in the form of declining sales and loss of goodwill. Locus, 2014 WL

18

4271635, at *1. The court dismissed the Lanham Act claim for lack of standing:
[Plaintiff] alleges that the inferiority of the [defendants]
product . . . led to consumer disappointment and frustration, which in turn decreased sales by [plaintiff] and hurt
its reputation. Despite the . . . use of the Lanham Act terminology to describe the harm allegedly suffered by
[plaintiff], the injury of which [plaintiff] complains does
not stem from conduct by [defendant] which unfairly diminished [plaintiffs] competitive position in the marketplace. Rather, it stems from [plaintiffs] inducement to
purchase [defendants product] by the allegedly deceitful
and/or misleading statement made by [defendant] . . . .
Though labeled as declining sales and a loss of good
will, the injuries allegedly caused by the false advertising . . . flow from [plaintiffs] purchase of the allegedly
non-functioning [product].

19
20
21
22
23
24
25
26
27
28

Id. at *2.
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As in Locus, the Commercial Plaintiffs purported harm stems from their al-

leged purchases due to Defendants alleged deception. But for the purchase by

[Commercial Plaintiffs] of the [Fight], which [they] claim[] was induced by deceit,

[Commercial Plaintiffs] would not have a cause of action to assert against [Defend-

ants]. Id. This is true despite the Complaints use of conclusory Lanham Act ter-

minology, id., including allegations of reputational injuries and diversion and

loss of sales. Jammers Compl. 184-85. Because the Commercial Plaintiffs do

not and cannot show they are suing as competitors, the Lanham Act claim fails.

Second, Plaintiffs fail to meet Lexmarks proximate cause requirement. To do

10

so, a plaintiff must plead facts showing economic or reputational injury flowing di-

11

rectly from the deception wrought by the defendants advertising. Lexmark, 134 S.

12

Ct. at 1391. Such injury occurs when deception of consumers causes them to with-

13

hold trade from the plaintiff. Id. A plaintiff has a harder time making this show-

14

ing where, as here, the parties are not direct competitors. Id. at 1392.

15

The Commercial Plaintiffs nevertheless assert that they incurred reputational

16

damage due to Defendants conduct. Jammers Compl. 184. But they fail to ex-

17

plain what that purported damage is, how it is attributable to Defendants, or why it

18

makes patrons less likely to frequent sports bars and restaurants for future PPV

19

fights and sporting events. Id. Simply put, there is no plausible basis to infer that

20

any Defendants conduct impugned the reputation of any third-party Plaintiff. Plain-

21

tiffs conclusory and implausible allegations of such damage are insufficient for

22

Lanham Act standing. See Ahmed v. Hosting.com, 28 F. Supp. 3d 82, 91 (D. Mass.

23

2014) (no standing where plaintiff alleged no means by which to assess whether

24

[the requisite] damage ha[d] occurred, and whether the defendants actions [were]

25

the proximate cause); Peter Kiewit Sons, Inc. v. Wall St. Equity Grp., Inc., 2014

26

WL 4843674, at *6 (D. Neb. Sept. 29, 2014), affd 809 F.3d 1018 (8th Cir. 2016)

27

(same where plaintiff asserted a legal conclusion of injury).

28

The Commercial Plaintiffs also claim they incurred economic harm such as
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diversion and loss of sales, including food and beverage sales, on the night of the

Fight. Jammers Compl. 184, 191-92. They blame Defendants for this, alleging

that sales that night were lower than a typical Saturday night and were lower than

they would have been had the Fight never been falsely advertised. Id. 191. Ac-

cording to the Commercial Plaintiffs, had Pacquiaos injury been disclosed before

the Fight, consumer patrons would not have purchased the PPV package and in-

stead would have made alternative plans for the evening, including visiting class

members establishments. Id. 198. But any causal chain linking this purported

harm to Defendants is too attenuated and speculative as a matter of law. Lexmark,

10

134 S. Ct. at 1394. Any movie theater, restaurant, or bowling alley could make such

11

a generic claim, because it blithely assumes that consumers would (1) not purchase

12

the PPV package, (2) ma[ke] alternative plans, (3) visit the Commercial Plain-

13

tiffs establishments, and (4) spend money there. Jammers Compl. 198. And it as-

14

sumes greater sales had Defendants not advertised the Fight as they didwhich is

15

contrary to the Commercial Plaintiffs other allegation that the ads led a record au-

16

dience to their businesses. Id. 20. This asserted harm is too remote as a matter of

17

law to have been proximately caused by Defendants. Lexmark, 134 S. Ct. at 1390;

18

see Maine Springs, LLC v. Nestl Waters N. Am., Inc., 2015 WL 1241571, at *7 (D.

19

Me. Mar. 18, 2015) (Lanham Act claim dismissed for lack of proximate cause).59
Equally flawed is the Commercial Plaintiffs claim that the alleged false ad-

20
21

vertisements and deceptive conduct diverted their sales by encouraging con-

22

sumers to stay home and purchase a consumer PPV package of the Fight. Jammers

23

Compl. 188; see id. 192 (Defendants urg[ed] consumers to order such packag-

24

es). In fact, the Commercial Plaintiffs identify no ads encouraging or urging

25

consumers to stay home. Even if they had, there is nothing deceptive about pro-

26

moting one method of viewing the Fight over another. Thus, this theory also fails to

27
28

59

The related allegation that Plaintiffs sales would have been higher had the Fight
been cancelled or postponed, Jammers Compl. 191, fails for the same reasons.
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proximately connect any deceptive act to the Commercial Plaintiffs alleged harm.
2.

Plaintiffs Fail to Plead a False or Misleading Statement

Lanham Act claims cannot be based on [an] omission of a fact. K & N

3
4

Engg, Inc. v. Spectre Performance, 2011 WL 4387094, at *18 (C.D. Cal. Sept. 20,

2011) (collecting cases). Instead, an affirmative false or misleading statement of

fact is required. Southland, 108 F.3d at 1139; see 15 U.S.C. 1125(a)(1) (proscrib-

ing false or misleading representation[s] of fact). Because the Lanham Act claim

here is based on alleged omissions, Jammers Compl. 183, 195, it must be dis-

missed. See Alexso, Inc. v. First Databank, Inc., 2015 WL 5554005, at *3 (C.D. Cal.

10

Sept. 21, 2015) (Lanham Act claim dismissed for failure to allege a deceptive af-

11

firmative representation); Spectre, 2011 WL 4387094, at *18 (same).60

12

D.

The Unjust Enrichment Claims Fail

13

Plaintiffs unjust enrichment claims under California, Texas, and New Jersey

14

law must be dismissed because these states do not recognize such claims as inde-

15

pendent causes of action.61 The remaining unjust enrichment claimsunder Con-

16

necticut, Illinois, Pennsylvania, Puerto Rico, Michigan, Nevada, New York, South

17

Carolina, and Tennessee lawalso fail for multiple reasons.


First, because Plaintiffs got what they paid for, see supra IV, all unjust en-

18
19

richment claims fail because no Defendant was unjustly enriched at any Plaintiffs

20

expense. See Soto v. Sky Union, LLC, 2016 WL 362379, at *10 (N.D. Ill. Jan. 29,

21

60

22
23
24
25
26
27
28

The Jammers Complaint references the same allegedly deceptive statements discussed above. See supra VI.A.1(b). To the extent these allegations are meant to
support the Lanham Act claim, that attempt fails because the statements are puffery.
See Southland, 108 F.3d at 1145 ([p]uffing not actionable under Lanham Act).
61
See Sater v. Chrysler Grp. LLC, 2015 WL 736273, at *14 (C.D. Cal. Feb. 20,
2015) (California and Texas do not recognize unjust enrichment as an independent
cause of action); Giercyk v. Natl Union Fire Ins. Co. of Pittsburgh, 2015 WL
7871165, at *7 (D.N.J. Dec. 4, 2015) (same; New Jersey); McKinniss, 2007 WL
4766525, at *6 (There is no cause of action for unjust enrichment in California[.]).
The California Plaintiffs label this claim as one for money had and received, Cal.
Compl. at 86, but it fails for the same reason because such claims are another name
for a common law action for restitution and superfluous of UCL and CLRA
claims. Rojas v. Gen. Mills, Inc., 2013 WL 5568389, at *7 (N.D. Cal. Oct. 9, 2013).
As explained in the Mayweather Defendants brief, the Illinois unjust enrichment
claim also fails to be pled as an independent cause of action.
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2016) (dismissing Illinois and Michigan unjust enrichment claims where plaintiffs

got what they sought when they gave money to defendant and thus it was not in-

equitable for defendant to retain it).62


Second, unjust enrichment claims fail where they mirror[] other statutory or

4
5

tort claims that offer an adequate remedy at law. Ford, 2014 WL 1007066, at *5 &

n.1 (dismissing California, Connecticut, Illinois, Pennsylvania, Michigan, New Jer-

sey, New York, Tennessee, and Texas unjust enrichment claims that did not distin-

guish the alleged deception underlying [these] claims from that underlying others;

If plaintiffs claim they were damaged as a result of consumer deception, the proper

10

remedy is under their respective state consumer protection statutes.); Ocaso, 915 F.

11

Supp. at 1263 ([C]laims for unjust enrichment are subsidiary in nature and will on-

12

ly be available in situations where there is no available action to seek relief.). This

13

defeats all unjust enrichment claims here since they are based on the same alleged

14

deceptive acts as the other claims. See, e.g., Cal. Compl. 267; Ill. Compl. 192.
Third, and for similar reasons, the unjust enrichment claims must be dis-

15
16

missed because they are derivative of the flawed statutory claims. See Donachy v.

17

Intrawest U.S. Holdings, Inc., 2012 WL 869007, at *8-9 (D.N.J. Mar. 14, 2012)

18

(dismissing Connecticut, New Jersey, and New York unjust enrichment claims for

19

failure to adequately plead the underlying conduct on which [they were] based).63

20

E.

The Conspiracy Claims Fail

21

Plaintiffs failure to adequately plead an underlying claim alone defeats their

22

conspiracy claims.64 These claims also fail because they are inadequately pled. To

23

62

24
25
26
27
28

See also Castillo, 268 A.D.2d at 337 (same where plaintiffs received what they
paid for); supra n.11 (unjust enrichment requires injury or loss).
63
See also Cleary, 656 F.3d at 517 ([I]f an unjust enrichment claim rests on the
same improper conduct alleged in another claim, then the unjust enrichment claim
will be tied to this related claimand, of course, unjust enrichment will stand or fall
with the related claim.) (applying Illinois law); Taylor v. Kochanowski, 2010 WL
2696675, at *3 (Mich. App. July 8, 2010) (because the unjust enrichment claim is
simply a derivative of [another failed claim], it must also fail [on the same
ground]).
64
See, e.g., Zodda v. Natl Union Fire Ins. Co. of Pittsburgh, Pa., 2014 WL
1577694, at *5 (D.N.J. Apr. 21, 2014) (If there is no valid underlying tort, a claim
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plead a conspiracy under Florida, Michigan, or New Jersey law, Plaintiffs must al-

lege facts showing an agreement between the Defendants to violate the law and an

overt act in furtherance of the agreement.65 Similarly, South Carolina law requires

allegations of an agreement made for the purpose of injuring Plaintiffs and an overt

act in furtherance of the agreement.66 Plaintiffs allege none of this.

First, Plaintiffs allege no facts showing that Defendants agreed expressly or

implicitly to suppress[] and conceal[] the injury. Fla. Compl. 214.67 Conclusory

allegations that such an agreement existed, id. 21, 215, 218, are insufficient.

See Mejia v. EMC Mortg. Corp., 2012 WL 367364, at *7 (C.D. Cal. Feb. 2, 2012)

10

(dismissing claim that conclusory allege[d] defendants conspired to defraud the

11

plaintiffs without explaining the formation of the conspiracy or any specific wrong-

12

ful conduct done in furtherance of [it]); J.M. v. E. Greenwich Tp. Bd. of Educ.,

13

2008 WL 4117971, at *4 (D.N.J. Aug. 27, 2008) (same for bald allegation that the

14

defendants agreed to violate laws). Nor are allegations that some Defendants

15

agreed to promote and telecast the Fight, see Fla. Compl. 34, 39, 42, sufficient to

16

show an agreement to violate the law or injure Plaintiffs.68

17

At bottom, Plaintiffs try to plead a conspiracy by asserting that each Defend-

18

ant did not publicly disclose the injury. See id. 21 (Defendants, acting both indi-

19
20
21
22
23
24
25
26
27
28

for civil conspiracy should be dismissed.); Mowett v. JPMorgan Chase Bank, 2016
WL 1259091, at *6 (E.D. Mich. Mar. 31, 2016) (same; Michigan); Czarnecki v.
Roller, 726 F. Supp. 832, 840 (S.D. Fla. 1989) (same; Florida).
65
See Zodda, 2014 WL 1577694, at *5 (In New Jersey, a civil conspiracy is a
combination of two or more persons acting in concert to commit an unlawful act, or
to commit a lawful act by unlawful means, the principal element of which is an
agreement between the parties to inflict a wrong against or injury upon another, and
an overt act that results in damage.); Mapal, Inc. v. Atarsia, 147 F. Supp. 3d 670,
685 (E.D. Mich. 2015) (same; Michigan); Russo v. Fink, 87 So. 3d 815, 819 (Fla.
Dist. Ct. App. 2012) (same; Florida).
66
Hackworth v. Greywood at Hammett, LLC, 682 S.E.2d 871, 874 (S.C. Ct. App.
2009) (a conspiracy is a combination of two or more persons, for the purpose of
injuring plaintiff, and causing plaintiff special damage; [T]he gravamen . . . is
the damage resulting [] from an overt act done pursuant to a common design.).
67
The conspiracy allegations made in other Complaints are substantively identical.
68
Plaintiffs vague allegation that Pacquiao, Roach, Koncz, and/or certain other
Defendants discussed having to postpone the Fight, Fla. Compl. 97, see id. 6,
also fails to establish an agreement to do anything.
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vidually and as part of a conspiracy, agreement and/or understanding with other De-

fendants, each sought to . . . suppress and conceal information[.]); id. 7, 10-11,

66, 71, 73, 147. This, at best, shows parallel conduct that could just as well be in-

dependent action. In re Managed Care Litig., 2009 WL 7848517, at *10 (S.D. Fla.

2009) (quoting Twombly, 550 U.S. at 557) (conspiracy claim dismissed where alle-

gations of agreement were conclusory or based on parallel conduct). Indeed,

Defendants allegedly parallel conduct can easily be explained by a theory of ra-

tional independent action, id.: Defendants unaware of the injury could not have dis-

closed it, and those aware of it did not do so since there is no duty to make such dis-

10

closures. See supra VI.A.1. Given Plaintiffs failure to show that Defendants un-

11

derst[ood] the general objectives of the scheme, accept[ed] them, and agree[d], ei-

12

ther explicitly or implicitly, to do [their] part to further them, the conspiracy claims

13

fail. Banco Popular N. Am. v. Gandi, 876 A.2d 253, 263 (N.J. 2005).69
Second, since Plaintiffs do not plead a conspiratorial agreement, it follows

14
15

that they do not plead an overt act committed in furtherance of such an agreement.

16

In fact, Plaintiffs make no allegation about any such act. See Fla. Compl. 213-18.

17

Finally, the South Carolina Plaintiff fails to plead two other elements for his

18

conspiracy claim: (1) additional acts in furtherance of the conspiracy and separate

19

and independent from the other [alleged] wrongful acts; and (2) special damages

20

beyond those pled for other claims. Hackworth, 682 S.E.2d at 875. For the first ele-

21

ment, the South Carolina Plaintiff improperly relies on the same alleged conduct

22

Defendants alleged omissionsfor his SCUTPA claim and conspiracy claim. See

23

S.C. Compl. 204 (Defendants conspired by agreeing to engage in the wrongful

24

conduct alleged herein, including but not limited to that in violation of the SCUTPA,

25

69

26
27
28

See PNC Bank, N.A. v. Goyette Mech. Co., 88 F. Supp. 3d 775, 783 (E.D. Mich.
2015) (plaintiff must plead the coconspirator shared in the general conspiratorial
objective); Wells Fargo Bank v. Crowley, 2014 WL 11370437, at *9 (N.D. Ga.
Feb. 20, 2014) (applying South Carolina law) (plaintiff must plead the joint assent
of the minds of two or more parties); cf. Menendez v. Beech Acceptance Corp., 521
So. 2d 178, 180 (Fla. Dist. Ct. App. 1988) (plaintiff must show knowledge of a
conspiracy, and participation in it).
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namely the suppression and concealment of the injury); id. 192, 196-97 (same

conduct alleged for SCUTPA claim). And for the second element, the South Caroli-

na Plaintiff asserts he incurred damage beyond that alleged for the SCUTPA

claim, id. 204, but asks for the same damages for his SCUTPA and conspiracy

claims. See id. 200, 208. Both pleading failures merit the dismissal of the [South

Carolina conspiracy] claim[s]. Hackworth, 682 S.E.2d at 875.70

VII. CONCLUSION
The Court should dismiss all Complaints with prejudice.

8
9

Dated: September 6, 2016

10
11
12
13

DANIEL M. PETROCELLI
JEFFREY A. BARKER
DAVID MARROSO
ESTEBAN RODRIGUEZ
OMELVENY & MYERS LLP
By: /s/ Daniel M. Petrocelli
Daniel M. Petrocelli

14
15

Lead Counsel for Defendants and Attorneys for Defendants Top Rank, Inc.,
Robert Arum, Todd duBoef, Emmanuel
Pacquiao, Michael Koncz, and Home
Box Office, Inc.

16
17
18
19
20
21
22
23
24
25
26
27
28

70

See Boyd v. Angelica Textile Servs., Inc., 2012 WL 2260235, at *4 (D.S.C. May
18, 2012) (dismissing conspiracy claim that relied on identical facts as other
claims and [did] not explain what special damages [plaintiff] suffered); Springer
v. Pelissier, 2011 WL 2601895, at *2 (D.S.C. July 1, 2011) (same).
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