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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 1 of 34

UNITED STATES DISTRICT COURT


DISTRICT OF CONNECTICUT

RUSS McCULLOUGH, et al., : NO. 3:15-cv-01074-VLB


: LEAD CASE
Plaintiffs, :
:
vs. :
:
WORLD WRESTLING ENTERTAINMENT, :
INC., :
:
Defendant. :

JOSEPH M. LAURINAITIS, et al., : NO. 3:16-CV-01209-VLB


: CONSOLIDATED CASE
Plaintiffs, :
:
vs. :
:
WORLD WRESTLING ENTERTAINMENT, :
INC., et al., :
:
Defendants. : FEBRUARY 1, 2017

FORM 26(f) REPORT OF THE PARTIES PLANNING MEETING

Date Complaint Filed: The original complaint was filed on July 18, 2016. The

First Amended Complaint (FAC) was filed on

November 9, 2016.

Date Complaint Served: Defendants waived service with respect to the original

complaint as of July 19, 2016.

Date of Defendants Appearance: July 21, 2016.

Pursuant to Fed. R. Civ. P. 16(b), 26(f) and D. Conn. L. Civ. R. 16, a

conference was held on January 30, 2017 in the matter captioned Laurinaitis et al.
Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 2 of 34

v. World Wrestling Entertainment, Inc. et al., No. 3:16-CV-01209-VLB after being

instructed to do so by the Court. The participants were Konstantine Kyros, R.

Christopher Gilreath, S. James Boumil, Anthony Norris, Erica Mirabella and

Brenden Leydon for Plaintiffs and Jerry S. McDevitt, Curtis B. Krasik, and Jeffrey

Mueller for Defendants.

I. CERTIFICATION

Undersigned counsel certify that, after consultation with their clients, they

have discussed the nature and basis of the parties claims and defenses and any

possibilities for achieving a prompt settlement or other resolution of the case

and, in consultation with their clients, have developed the following proposed

case management plan. Counsel further certify that they have forwarded a copy

of this report to their clients.

II. JURISDICTION

A. Subject Matter Jurisdiction

Plaintiffs Statement

Plaintiffs believe this Court has subject matter jurisdiction pursuant to 28

U.S.C. 1332(a) based on diversity of citizenship of the parties.

Defendants Statement

As described in WWEs memorandum of law in support of its motion to

dismiss Plaintiffs FAC, Defendants contest this Courts subject matter

jurisdiction over (a) Plaintiffs claims that they were allegedly misclassified as

independent contractors (Counts I, XV and XVI); (b) Plaintiffs claims for

declaratory relief (Counts I, III, and XVI); and (c) Plaintiffs wrongful death claims

(Count VII). WWE further contests this Courts subject matter jurisdiction over
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this case under 28 U.S.C. 1332(c)(11) as a so-called mass action because

Plaintiffs claims are misjoined.

B. Personal Jurisdiction

Personal jurisdiction in this Court is not contested.

III. BRIEF DESCRIPTION OF CASE

Plaintiffs Statement

The Plaintiffs claims stem from WWEs misclassification of and

mistreatment of its wrestlers for its own benefit, resulting in both economic as

well as noneconomic harm, as more fully set forth in Plaintiffs Complaint. Such

misclassification and consequent evasion of substantial rights protected by state

and federal statutes has compounded Plaintiffs injuries, thereby tolling any and

all Statutes of Limitations, and rendering any contracts violating said laws as

unconscionable per se, and void in violation of public policy. Defendants still

assert protection under the Contracts they apparently claim are no longer

applicable, since they assert the forum selection clause and choice of law

provisions of those contracts as the basis for being in a Connecticut Court in the

first instance. These so called fully performed contracts still govern the

payment of royalties to the Plaintiffs and purport to authorize use of the images

and video tape of the Plaintiffs performances to benefit the Defendants to this

day. As for the Levy case cited by the Defendants, it is easily distinguishable

and simply not applicable to these facts.

Neither the Plaintiffs first filed Complaint nor the FAC assert causes of

action under OSHA or NLRA, or the IRC as Defendants incorrectly assert here

and elsewhere. Plaintiffs seek equitable relief, declaratory relief, compensatory


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and punitive damages for the losses suffered by Plaintiffs as a result of WWEs

acts or omissions. Any statute of limitations defense is tolled by the Defendants

conduct as extensively alleged in the FAC, and the applicable law is that once

such allegations are properly declared they present jury issues.

Even if assumption of the risk as asserted by the Defendants were to be

resurrected at common law from its deserved and ancient grave, it protect

against only risks that were open and obvious not those actively concealed by

the Defendants to promote their financial aggrandizement at the expense of

Plaintiffs. Furthermore in Connecticut it is sparingly available and certainly no to

the facts alleged here of knowing concealment of the risks1. "The doctrine of

assumption of risk has been overwhelmingly rejected as a defense to intentional

torts. Janelsins v. Button, 648 A.2d 1039, 1045 (Md. App. 1994); Lopez v. CCRC

dba Nutmeg Recycling, LLC, No. CV05-4006614 (CT 1/27/2006) (CT, 2006).

The Plaintiffs do not consider a Rule 26(f) report as an invitation to heap

abuse on opposing counsel2, to materially misstate the positions of an opponent,

or to repeat the arguments of assorted Motions which have already been

assigned for disposition elsewhere. The Plaintiffs have attempted to conduct in

good faith a Rule 26 conference since September when they were forced to file a

1
For example a particularly dangerous move the pile driver which saw a
wrestler turned upside down and resulted in devastating smashing of the head
into the ring was routinely scripted by the WWE into matches. Likewise the body
slam WWEs most common move which subjected the exceedingly fine
mesh of neural connections to the forces of extreme deceleration.
2
Never make insulting or disparaging remarks to or concerning your
adversary Federal Litigation Guide Volume 3, page 26-4. We respectfully
suggest that this basic rule of professional decorum be suggested by the Court
to all participants, and then if needed, enforced.
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Proposed Rule 26f Report in the face of Defendants objections. Now this filed

Report displays the Defendants continued improper use of procedural tools to

argue substantive merits.

The Defendants attempts to argue case merits in a Rule 26(f) Report, doing

so with slanted, objectionable tone, language, and implication, personally

impugning the Plaintiffs and their Counsel, and mischaracterizing Plaintiffs

attempts to work with the Defendants on matters as simple as completing a 26(f)

Report, and which statements will unnecessarily delay, confuse, and complicate

the docket, wastes the Courts time. Plaintiffs implore the Court to enforce

structures of civility and decorum in order to secure orderly prosecution of this

action.

Defendants Statement

WWE denies liability on all of Plaintiffs claims, and contends that the FAC

contains non-existent causes of action, fraudulent claims and allegations, claims

that have been released, and that all the claims are time-barred. As demonstrated

in WWEs motions for sanctions addressed to both the original complaint and the

FAC, Plaintiffs counsel constructed substantial portions of the claims by

massively plagiarizing allegations from a complaint filed against the NFL which

has no relevance to WWE and simply switched references to the NFL to

WWE. Plaintiffs assert claims for alleged traumatic brain injuries (TBIs)

sustained from voluntarily participating in activities where the risks of

concussive and sub-concussive injuries are known, apparent, and reasonably

foreseeable consequences of participation. Most of the Plaintiffs signed

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contracts expressly acknowledging that they freely assumed the risk of injury

inherent in their profession, and all of the Plaintiffs knew or should have known

of public reports alleging an association between professional wrestling and CTE

no later than September 2007 when such reports were massively publicized

following the death of Chris Benoit, a former WWE performer. In these

circumstances, WWE did not breach any legal duty as alleged by Plaintiffs, and

all Plaintiffs could in the exercise of diligence have learned of such risks well

within the operative limitations periods. WWE also could not and did not conceal

any facts regarding such reported risks, all of which are in the public domain.

Such scientific information was recently described by another federal judge as

follows: The study of CTE is nascent, and the symptoms of the disease, if any,

are unknown and the speculation that repeated concussion or subconcussive

impacts cause CTE remains unproven. The publicly-available scientific

information regarding TBIs that WWE allegedly concealed is not a fact capable of

supporting fraud/misrepresentation claims. Plaintiffs also assert a successor

liability claim seeking to make WWE liable for alleged injuries Plaintiffs

supposedly sustained for other wrestling organizations.

In addition to the TBI claims, Plaintiffs assert claims that they were

misclassified as independent contractors, which are foreclosed by Judge

Dorseys ruling on identical claims years ago in Levy et al. v. World Wrestling

Entmt, Inc., No. 3:08-01289(PCD), 2009 WL 455258 (D. Conn. Feb. 23, 2009).

Judge Dorsey ruled that there is no private right of action for such claims and

that such claims would be time-barred in any event. Plaintiffs attempt to use the

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misclassification claims to seek to set aside contracts that have been fully

performed for years and in many cases for decades. Plaintiffs further assert that

their booking contracts with WWE were unconscionable, thereby somehow

entitling them to 50% of WWEs profits on the exploitation of copyrighted works

exclusively owned by WWE under unjust enrichment and

accounting/disgorgement claims. Plaintiffs also seek damages for benefits

supposedly owed under ERISA. Additionally, Plaintiffs assert a RICO claim based

upon the misclassification claims against WWE Chairman Vince McMahon,

personally and as trustee for various family estate planning trusts that have

nothing to do with the operation of WWE.

Defendants have moved to dismiss Plaintiffs lawsuit both on substantive

grounds and as a sanction for continuing Rule 11 violations which ignore the

prior admonitions of the Court and for conduct treated as a fraud on the court

when such conduct has been exposed to, and addressed by, other federal courts.

That conduct, specifically the massive plagiarism, was exposed in the pending

motion for sanctions aimed at the original complaint. The FAC filed after the

fraud on the court was exposed neither mitigated nor eliminated the fraud on the

court, as demonstrated in the pending motion for sanctions aimed at the FAC. In

addition to seeking dismissal as a sanction for the pervasive misconduct and

fraud on the court, Defendants pending motions to dismiss seek the dismissal of

the FAC for the following reasons.

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First, Plaintiffs claims are all time-barred by the applicable statutes of

limitation/repose under Connecticut and/or federal law, and Plaintiffs have not

sufficiently pled any basis for tolling.

Second, Plaintiffs misclassification claims fail because (a) there is no

cause of action for misclassification, intentional deprivation of statutory rights

under the Family & Medical Leave Act or mandatory reporting; (b) the Court lacks

subject matter jurisdiction over Plaintiffs misclassification claims because

federal administrative remedies provide the exclusive remedy for challenging

Plaintiffs classification as independent contractors; (c) there is no private right of

action under the IRC, FICA, NLRA, OSHA, or to enforce the notice requirement

under FMLA; (d) FICA claims are preempted by Section 7422 of the Internal

Revenue Code; and (e) no Plaintiff has alleged the required elements of a FMLA

interference claim.

Third, Plaintiffs declaratory judgment claims do not present a justiciable

case or controversy and must be dismissed because (a) they are not independent

causes of action and are not supported by substantive rights; (b) Plaintiffs lack

standing because the declarations they seek can have no effect on existing rights

because no plaintiff performs for WWE or ever will again; and (c) the Court

should exercise its discretion to decline to hear the declaratory judgment claims

in any event.

Fourth, Plaintiffs claim seeking a declaration of unconscionable contracts

fails because (a) the contracts at issue have been fully performed for many years;

(b) there is no cause of action for unconscionable contracts; and (c) Plaintiffs

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have not adequately alleged facts demonstrating procedural or substantive

unconscionability. Only one plaintiff actually attached his contracts in order for

the court to examine the terms and those contracts demonstrate he was paid

hundreds of thousands of dollars. By not pleading specifics and by failing to

attach the actual contracts, Plaintiffs counsel conceal that many of the Plaintiffs

made hundreds of thousands, and sometimes millions of dollars from contracts

now said to be unconscionable.

Fifth, Plaintiffs claims for an accounting/disgorgement of profits and

unjust enrichment associated with WWEs exploitation of its copyrighted works

fail because (a) accounting and disgorgement are remedies and not independent

causes of action under Connecticut law; (b) an unjust enrichment claim cannot be

asserted where there is an express contract that governs the relationship

between the parties and covers the same subject matter; and (c) Plaintiffs cannot

use such claims to retroactively seek rights in WWEs copyrighted works.

Sixth, Plaintiffs ERISA claim is substantively defective because (a)

Plaintiffs lack standing; (b) Plaintiffs have not identified a violation of any ERISA

plan or any substantive violation of the ERISA statute; and (c) Plaintiffs cannot

pursue the remedies they seek under ERISA.

Seventh, Connecticut does not recognize causes of action for medical

monitoring, fraudulent concealment or civil conspiracy to commit fraudulent

concealment.

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Eighth, Plaintiffs fail to allege facts to support their fraud, fraudulent

nondisclosure, and negligent misrepresentation claims with the requisite

particularity.

Ninth, Plaintiffs negligence-based claims fail because (a) WWE owed no

negligence-based duties to Plaintiffs; (b) Plaintiffs fail to allege facts to support

the elements of negligent hiring and negligent retention and simply plagiarized

those counts from a complaint against the NFL; and (c) claims based on the

alleged negligence of WWEs medical staff fail to comply with the requirements of

C.G.S. 52-190a.

Tenth, the wrongful death and survival claims on behalf of Plaintiffs

Knighton and Rechner fail to allege a plausible causal connection between

WWEs conduct and the decedents death. Additionally, Rechners wrongful

death claim fails because Gayle Schechter lacks standing to assert such a claim.

Eleventh, Plaintiffs successor liability claim is substantively defective

because (a) Plaintiffs fail to allege any underlying liability of HHG Corp. d/b/a

Extreme Championship Wrestling (ECW) and World Championship Wrestling,

Inc. (WCWI); (b) WWE purchased the ECW assets free and clear of all claims

and liabilities in a Chapter 7 bankruptcy sale; and (c) WWE cannot be liable as a

successor to WCWI because WCWI continues to exist as Universal Wrestling

Corporation.

Twelfth, Plaintiffs RICO claim against Vincent K. McMahon is time-barred

and substantively defective.

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Thirteenth, the claims asserted by at least 23 Plaintiffs are barred by

contractual releases.

Defendants pending motion for sanctions asks the Court to dismiss the

FAC under Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. 1927 and

the Courts inherent authority because the FAC: (a) continues to rest on

numerous plagiarized allegations from the NFL concussion lawsuit and to falsely

attribute statements and actions of the NFL to WWE; (b) continues to assert

allegations that this Court has already found to be false and misleading in its

prior rulings; (c) continues to assert allegations that Plaintiffs counsel knew were

false based on discovery taken in the Singleton/LoGrasso Action; and (d)

continues to assert legally frivolous and time-barred claims, including claims

which the Court has already rejected as not viable claims under Connecticut law

in prior dispositive rulings.

In the event that any aspect of Plaintiffs FAC survives Defendants pending

motions to dismiss and motions for sanctions, WWE intends to assert

counterclaims for breach of contract against at least the 23 Plaintiffs who signed

written releases expressly releasing the claims asserted in the FAC and possibly

for tortious interference with contractual relationships between WWE and certain

of the Plaintiffs.

IV. STATEMENT OF UNDISPUTED FACTS

Counsel certify that they have made a good faith attempt to determine

whether there are any material facts that are not in dispute. The parties are not

able to enter into such a stipulation at this time.

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V. CASE MANAGEMENT PLAN

A. Standing Order on Scheduling in Civil Cases

The parties request modification of the deadlines in the Standing Order on

Scheduling in Civil Cases as noted below.

B. Scheduling Conference with the Court

Plaintiffs Statement

The Plaintiffs do request a pretrial conference with the Court before entry

of a scheduling order pursuant to Fed. R. Civ. P. 16(b). The Plaintiffs prefer a

conference in person.

Defendants Statement

If the Court does not grant Defendants motion to stay discovery,

Defendants request a pretrial conference with the Court before entry of a

scheduling order pursuant to Fed. R. Civ. P. 16(b) and prefer a conference in

person. For the reasons set forth below and in a formal motion to stay being filed

concurrently with this report, Defendants respectfully submit that discovery in

this case should be stayed until after the disposition of Defendants pending

motions to dismiss and motions for sanctions. This Court has stayed discovery

in all prior cases and lifted the stay only for certain issues in the

Singleton/LoGrasso case on the sole claim that was not dismissed. Although the

grounds for a stay are set forth at length in Defendants motion to stay, a pretrial

conference with the Court would further assist, if necessary, in demonstrating the

significant difficulties in framing a reasonable discovery plan at this time and,

conversely, the substantial efficiencies for the parties and the Court to be gained

by the stay of discovery sought by Defendants.


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C. Early Settlement Conference

Plaintiffs Statement

1. Plaintiffs certify that they have considered the desirability of attempting

to settle the case before undertaking significant discovery or motion

practice. Plaintiffs believe a fair settlement is possible. Defendants

reject any settlement conference.

2. Plaintiffs request and agree to an early settlement conference.

Defendants are not open to any settlement conference.

3. Plaintiffs would agree to a settlement conference with the presiding

judge, a magistrate judge, a parajudicial office, or a special master.

4. Plaintiffs do not request a referral for alternative dispute resolution

pursuant to D. Conn. L. Civ. R. 16.

Defendants Statement

Given the pendency of Defendants motions to dismiss and motions for

sanctions, Defendants believe that an early settlement conference would not be a

productive use of the Courts time and that the better course is to permit the

Court to focus on the dispositive issues presented in Defendants motions.

Defendants believe that the resolution of the pending motions would be more

beneficial toward reaching a resolution of this matter. All of Plaintiffs claims are

foreclosed by prior rulings of this Court, or of Judge Dorsey in Levy, or are

otherwise defective. Accordingly, Defendants do not request an early settlement

conference.

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D. Joinder of Parties and Amendment of Pleadings

Plaintiffs Statement

1. Plaintiffs should be allowed until the end of discovery to file motions to

join additional parties and motions to amend the pleadings. Plaintiffs

should be allowed 60 days to file a response to any motions to dismiss

filed by WWE, due to anticipated complexity and the numerosity of

grounds expected to be asserted.

2. WWE should be allowed until the end of discovery to file motions to join

additional parties and 60 days to file a response to any amended

pleadings filed by Plaintiffs.

Defendants Statement

Plaintiffs previously amended their complaint in this action and

consequently no further amendments are permitted absent leave of the Court.

E. Discovery

Plaintiffs Statement

1. Plaintiffs anticipate that discovery will be needed on, among other

things, the following subjects:

a. WWEs and its predecessors and/or affiliates practices, policies and

procedures in classifying its wrestlers and its acts or omissions in

communicating with and about its wrestlers in relation to their health,

welfare, rights and responsibilities.

b. WWEs and its predecessors and/or affiliates practices, policies and

procedures, and its investigation and knowledge regarding health

concerns, hazards or risks relating to its wrestlers.


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c. All information relating to WWEs acquisition of ECW and WCW,

including all related contracts and parent companies or subsidiaries,

and WWEs use of ECW and WCW in its business.

d. The involvement of any other persons relating to WWEs and its

predecessors and/or affiliates practices, policies and procedures in

classifying its wrestlers and its acts or omissions in communicating

with and about its wrestlers in relation to their health, welfare, rights

and responsibilities.

e. All information within WWEs possession relating to the health of its

performers, any discussions of injuries caused by head trauma, or the

use of certain wrestling holds or moves in relation to head trauma.

f. Matters related to all allegations in the Plaintiffs Complaint and any

pleadings, motions, communications or statements of Defendants

related to the subjects of this litigation.

g. All documents, including e-mails and other correspondence, related to

the topics listed above.

h. Copies of all contracts with any of the Plaintiffs made At any time and all

correspondence concerning said contracts, both to and from the

Plaintiffs, and internally.

i. All 1099s or other evidence of payments to any of the Plaintiffs,

however described.

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j. Any correspondence to or from any person or organization concerning

the classification of the Plaintiffs and/or other WWE performers as

independent contractors as opposed to employees.

2. Initial disclosures pursuant to Rule 26(a)(1) will be exchanged by the

parties on April 3, 2017.

3. All discovery, including depositions of expert witnesses pursuant to

Fed. R. Civ. P. 26(b)(4), will be commenced immediately following the entry of a

scheduling order by this Court and completed (not propounded) over 12 months

from the entry of the scheduling order.

4. Any established deadline for discovery would be extended beginning

from the date of when a determination of any proposed Motion to Stay would

issue.

5. Plaintiffs do not believe discovery should be conducted in phases.

6. The Plaintiffs anticipate that the Plaintiffs will require a total of over

25 depositions of fact witnesses. The depositions will be completed by the close

of discovery.

7. The Plaintiffs will request permission to serve more than 25

interrogatories.

8. Plaintiffs intend to call expert witnesses at trial. Plaintiffs will

designate all trial experts and provide opposing counsel with reports from

retained experts pursuant to Fed. R. Civ. P. 26(a)(2) two months after the close of

discovery. Depositions of any such experts will be completed seven months after

the close of discovery.

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9. Damages analyses will be provided by any party who has a claim or

counterclaim for damages two months after the close of discovery.

Defendants Statement

Defendants believe that all discovery should be stayed until after the

disposition of Defendants pending motions to dismiss and motions for

sanctions. Such a stay would be consistent with the Courts management of the

other cases in these consolidated proceedings. On October 30, 2015, WWE filed

a motion to stay discovery in the Haynes, Singleton/LoGrasso, McCullough,

Frazier, and James Actions pending disposition of the then-pending and

anticipated motions to dismiss those actions. By Order dated November 10,

2015, the Court granted WWEs motion to stay, ruling that [d]iscovery will be

stayed in these consolidated cases until the Court has ruled on the pending

motions to dismiss, but not later than January 15, 2015. By further Order dated

January 15, 2016, the Court partially lifted the stay of discovery only on the

fraudulent omission claim of Singleton/LoGrasso and only with respect to the

following three specific issues identified in the Courts Order: (1) whether WWE

had or should have had knowledge of and owed a duty to disclose to those

plaintiffs the risks of long-term degenerative neurological conditions resulting

from concussions or mild traumatic brain injuries to wrestlers who performed for

WWE in the year 2005 or later, (2) whether and when WWE may have breached

that duty, and (3) whether such a breach, if any, continued after Singleton and

LoGrasso ceased performing for WWE. With the limited exception of the

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foregoing, all other discovery in these consolidated proceedings has remained

stayed pursuant to the Courts November 10, 2015 Order.

On September 27, 2016, the Laurinaitis Action was reassigned to this Court

and, on October 3, 2016, this Court ordered the Laurinaitis Action to be

consolidated with the McCullough consolidated proceedings. WWE respectfully

submits that this Courts November 10, 2015 Order staying discovery in the

McCullough consolidated proceedings should equally apply to this case, and the

reasons for staying discovery in the prior cases apply with greater force here.

Plaintiffs FAC has not cured, and has actually exacerbated, the pleading

deficiencies that the Court addressed at the June 8, 2015 status conference and

in ensuing opinions dismissing four prior lawsuits. As the Court initially ruled at

the June 8, 2015 conference, until you have a complaint thats worthy of

discovery, its pointless to order the defense to conduct discovery because the

defense would be wasting their time. . . . [A]s long as the complaint is riddled with

irrelevant and hyperbolic material, it is a waste of time a violation of Rule 1 in

fact to have defendant proceed with discovery (Singleton Dkt. 73 at 63-64). The

Court went on to admonish Plaintiffs counsel that your complaint doesnt [put

the defendant on notice of the Plaintiffs claims]. Your complaint puts the

defendant on notice of things that arent claims, that are general notions, that are

irrelevant . . . Its punctuated with a lot of superfluous information. Id. at 64-65.

As a result of these pleading deficiencies, the Court ruled that it was not going

to order discovery because it would be a waste of the defendants time. Its going

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to generate unnecessary work for the defense and unnecessary work for the

Court. Id. at 65.

Since the Court made these statements, the Haynes, McCullough, Frazier,

and James Actions were dismissed in their entirety and all claims in the

Singleton/LoGrasso Action were dismissed, except for a single claim for

fraudulent omission that now is the subject of WWEs pending motion for

summary judgment. Moreover, the Court further admonished Plaintiffs counsel

for their repeated violation of the Federal Rules in the Courts March 21, 2016

Memorandum of Decision on the Haynes, Singleton/LoGrasso, and McCullough

motions to dismiss and, most recently, in the Courts November 10, 2016

Memorandum of Decision granting WWEs motions to dismiss the Frazier and

James Actions. In the Courts November 10, 2016 Memorandum of Decision,

among other things, the Court specifically admonished Kyros and his co-

counsel to adhere to the standards of professional conduct and to applicable

rules and court orders lest they risk future sanction or referral to the Disciplinary

Committee of this Court.

Despite these admonitions, Plaintiffs FAC is the worst yet. As an initial

matter, the FAC gloms together the unrelated claims of 60 separate plaintiffs who

performed in different eras (over two centuries), under different Booking

Contracts or no contract at all, with different WWE personnel, and during periods

prior to the reported discovery in 2005 of CTE in a football player and ensuing

reported CTE discoveries. In addition to continuing the pleading deficiencies for

which the Court admonished Plaintiffs counsel at the June 8, 2015 status

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conference and in the Courts November 10, 2016 Memorandum of Decision, as

described in WWEs pending motion to dismiss, the FAC was conceived by

Plaintiffs lead counsel, Konstantine Kyros, as a device to circumvent his prior

allegations which had been shown to be false in the Singleton/LoGrasso

discovery that WWE supposedly knew of the risks of long-term degenerative

neurological conditions from professional wrestling in 2005. In fact, the Courts

November 10, 2016 Memorandum of Decision noted the Courts prior reliance on

this allegation when it observed that the only claim that had survived dismissal

motions in three prior related cases (Haynes, Singleton/LoGrasso, and

McCullough) was a claim that could only be brought by wrestlers who performed

for WWE after WWE was alleged to have acquired the knowledge which it

allegedly failed to disclose which Plaintiffs alleged was on or about the year

2005. Dkt. 253 at 10. Discovery in Singleton/LoGrasso actually showed that the

first time WWE learned of a reported risk of a long-term degenerative neurological

disease being associated with professional wrestling was in September 2007

when Dr. Bennet Omalus reported CTE findings regarding Chris Benoit were

broadcast to the world. Nevertheless, in an attempt to avoid his prior allegation

of knowledge by WWE in 2005, which by then he knew to be false, Kyros and his

co-counsel altered his allegations against WWE by directly plagiarizing

allegations from a lawsuit against the NFL. Allegations about what the NFL

supposedly knew prior to 2005 were simply changed to substitute WWE for

NFL without a shred of factual basis. The FAC also inexplicably continues to

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assert claims that were previously adjudicated and dismissed by this Court in

these consolidated proceedings.

To further attempt to construct claims to argue that this case was not

related to the McCullough consolidated cases to avoid reassignment of the

Laurinaitis case to Judge Bryant an argument that was rejected Kyros

asserted that Plaintiffs had been misclassified as independent contractors. That

claim is foreclosed by Judge Dorseys prior rulings in Levy. As noted above,

Plaintiffs real gambit is to use the misclassification claims and vague and

insufficient unconscionability claims to attempt to set aside contracts that have

been fully performed for years and in many cases for decades. By doing so,

Plaintiffs seek 50% of WWEs profits on the exploitation of copyrighted works

exclusively owned by WWE under unjust enrichment and

accounting/disgorgement claims, even though no contract entitles them to 50%

of WWEs profits and despite clear law preempting such claims. In a transparent

attempt to increase pressure on WWE, the FAC newly asserts a RICO claim

against WWE Chairman Vince McMahon, personally and as trustee for various

family estate planning trusts that have nothing to do with the operation of WWE.

This is done even though misclassification is not even a predicate act under

RICO. Additionally, the FAC asserts a successor liability claim seeking to make

WWE liable for alleged injuries Plaintiffs sustained for other wrestling

organizations even though all of those other companies stopped promoting

events long before 2005, the date Kyros falsely alleged in prior cases that WWE

knew of the risks of neurodegenerative disease.

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WWE respectfully submits that all of Plaintiffs claims should be dismissed

pursuant to its pending motions to dismiss and motions for sanctions. The cost

and scope of discovery will be materially affected, and indeed determined, by the

Courts rulings on these motions. Accordingly, WWE believes that discovery

should be stayed pending disposition of these motions in order to avoid the

substantial time and expense that would completely unnecessary if the Court

dismisses Plaintiffs claims in their entirety.

1. In the event that discovery is not stayed, the scope of discovery

based on the current allegations of Plaintiffs FAC would be massive, expansive,

and contentious. As a result, in the parties Rule 26 planning meeting,

Defendants counsel attempted to discuss the nature of Plaintiffs claims in order

to determine if certain claims were going to be pursued. For example,

Defendants counsel asked Plaintiffs counsel if they would agree to dismiss

those claims asserted in the FAC which the Court previously dismissed pursuant

to its March 21, 2016 Memorandum of Decision specifically, medical

monitoring (Count VI), fraudulent concealment (VIII), civil conspiracy/fraudulent

concealment (Count XIV), and negligence-based claims (Counts X, XII, XIII)

reserving their right to seek reversal of the Courts rulings on appeal. Plaintiffs

counsel refused without explanation. Defendants counsel then asked if

Plaintiffs counsel would agree to dismiss (subject to preserving the issue for

appeal) the claims of those Plaintiffs who last performed for WWE pre-2005 in

light of the Courts ruling that a claim for fraudulent omission/nondisclosure,

which is the only claim that has survived dismissal motions to date, could only

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 23 of 34

be brought by wrestlers who performed for WWE after WWE was alleged to have

acquired the knowledge which it allegedly failed to disclose which Plaintiffs

alleged was on or about the year 2005. Again, Plaintiffs counsel refused without

explanation. Defendants counsel also asked if Plaintiffs counsel would agree to

preliminarily address the releases signed by at least 23 Plaintiffs so, if WWE is

correct that the releases are a complete bar, the parties need not expend time and

resources on general discovery with respect to those Plaintiffs claims. But

Plaintiffs counsel, once more, refused without explanation.

In the Rule 26 planning conference, the parties discussed the excessive

number of depositions that would be necessary in this action. The parties

discussed that, even assuming each of the 60 Plaintiffs had only two medical

providers each, which the parties agreed would be an unrealistically low number,

the depositions of the Plaintiffs and those medical providers alone would require

at least 180 days. As a result, the parties agreed that the time needed for

discovery in this case would clearly exceed one year. In reality, the limited

discovery in Singleton/LoGrasso proved that the time, effort, and costs

associated with discovery of Plaintiffs medical providers will be far more

substantial. In Singleton/LoGrasso, Plaintiffs counsel initially claimed to be

unable to provide complete information regarding Singleton and LoGrassos

medical treatment or even to obtain their own medical records from their medical

providers. WWE, therefore, was compelled to engage in extensive third-party

discovery that involved WWE serving subpoenas on 46 medical providers 27 of

Singleton and 16 of LoGrasso. The only reason WWE was even able to identify

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 24 of 34

these medical providers is that Singleton and LoGrasso had performed for WWE

comparatively recently and WWE had arranged and paid for Singleton to be seen

by many of them. Plaintiffs then perversely sought to compel WWE to provide

them with their own medical records that they had previously refused to obtain

and WWE was forced to independently obtain at great effort and expense

which the Court denied. Plaintiffs discovery tactics necessitated WWE obtaining

a compulsion order from this Court, with which Plaintiffs still refused to comply,

further necessitating the filing of the sanctions motion that remains pending

before the Court. But the Singleton/LoGrasso discovery involved only one

narrow claim and two Plaintiffs who had performed for WWE comparatively

recently; the time, costs, and anticipated discovery disputes would be magnified

exponentially in discovery involving 19 claims asserted by 60 Plaintiffs, many of

whom have not performed for WWE in decades, requiring discovery on over 1000

total claims. Moreover, this case would require substantially more voluminous,

complex, and protracted third-party discovery than Singleton/LoGrasso given the

numerous defunct and foreign wrestling organizations from which discovery

would be required.

If the Court denies a stay and permits discovery to proceed on all claims in

the FAC before rendering a decision on the motions to dismiss and motions for

sanctions, WWE anticipates that discovery will be needed on, among other

things, the following subjects:

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 25 of 34

a. Collusion and conversations among Plaintiffs regarding their claims in,

and expectations about, this lawsuit, including the bases for such

claims and expectations;

b. Reconstruction of a complete medical history of each Plaintiff;

c. Medical examination of each Plaintiff pursuant to Fed. R. Civ. P. 35;

d. Complete examination of each Plaintiffs wrestling activities outside of

WWE;

e. Complete history of each Plaintiffs employment and other activities

outside of WWE, including any history of playing football or other

contact sports;

f. Complete discovery of each Plaintiffs filings with the IRS before, after

and while performing for WWE;

g. Complete discovery of each Plaintiffs history of earnings before,

during, and after performing for WWE;

h. Medical treatment, if any, of each Plaintiff while performing for WWE;

i. Conversations each Plaintiff claims to have had with anyone at WWE

regarding any medical treatment while performing for WWE;

j. Wrestler understandings of the known risks of participation in

professional wrestling;

k. All communications each Plaintiff claims to have had with anyone at

WWE regarding TBIs;

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 26 of 34

l. Third-party discovery of other wrestling organizations for which

Plaintiffs performed, including defunct organizations such as WCWI and

ECW as well as foreign wrestling organizations;

m. Third-party discovery of all doctors who have treated each Plaintiff

before, during, and after performing for WWE;

n. Third-party discovery of scientific research regarding TBIs and CTE

underlying or cited in Plaintiffs FAC;

o. Third-party discovery regarding any diagnosis of CTE, whether in a

professional wrestler, football player, hockey player, etc.

p. Third-party discovery regarding the identity, concussion history, and

behavioral history of persons who have been tested for CTE and found

not to have it;

q. Third-party discovery regarding the allegations that Chris Benoit and

Andrew Martin were diagnosed with CTE, including, without limitation,

examination of Dr. Bennet Omalu, discovery as to whether there is chain

of custody evidence for the brains he claims to have examined, and

complete reconstruction and analysis of evidence on which those

diagnoses supposedly were based.

r. Third-party discovery regarding the allegation that Brian Knighton was

diagnosed with evidence of early stages of CTE, including, without

limitation, examination of Dr. Bennet Omalu and Dr. Julia K. Kofler,

discovery as whether there is chain of custody evidence for the brain

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 27 of 34

they claim to have examined, and complete reconstruction and analysis

of evidence on which this diagnosis supposedly was based;

s. Third-party discovery regarding the allegation that Jonathan Rechner

was diagnosed with evidence of CTE, including, without limitation,

examination of Dr. Bennet Omalu and Dr. Julia K. Kofler, discovery as

whether there is chain of custody evidence for the brain they claim to

have examined, and complete reconstruction and analysis of evidence

on which this diagnosis supposedly was based;

t. Third-party discovery of the basis for Plaintiffs allegation that a

consensus has developed that certain symptomology is associated with

CTE;

u. Third-Party discovery of the U.S. Armed Forces regarding Plaintiff

Ashley Massaros allegation of being sexually assaulted while on a

WWE tour to a military base in the Middle East;

v. Communications between or among Plaintiffs on social media relating

to the lawsuits;

w. Posts by Plaintiffs on social media relating to the lawsuits;

x. Complete discovery of each Plaintiffs negotiation of his/her WWE

Booking Contract(s);

y. All communications each Plaintiff claims to have had with WWE

personnel about the terms of his/her Booking Contract(s), including,

without limitation, the Plaintiffs classification as an independent

contractor;

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 28 of 34

z. Complete discovery of the releases signed by at least 23 Plaintiffs;

aa. Complete discovery of every contract each Plaintiff has entered into

with another wrestling organization, including, without limitation, every

contract with another wrestling organization pursuant to which the

Plaintiff was classified as an independent contractor;

bb.Complete discovery of every contract each Plaintiff has entered into

with any person or entity to license his/her rights of name and likeness;

cc. Complete discovery of the basis for allegations of the FAC regarding

WWEs alleged knowledge of scientific research on TBIs and CTE;

dd.Complete discovery of every alleged statement or omission to each

Plaintiff that supposedly misrepresented, concealed, and/or downplayed

the risk of TBIs and CTE.

ee. All solicitations and communications by Mr. Kyros or other lawyers

affiliated with him, including retainer agreements, sent to wrestlers who

did not agree to be represented by Mr. Kyros.

2. WWE does not believe that a date for initial disclosures should be

set at this time for the reasons described above. However, WWE believes that

Plaintiffs should be required to provide a list of all treating physicians and

corresponding authorizations for each plaintiff and signed IRS Form 8821 for

each plaintiff as part of their initial disclosures and before any other discovery in

this case is permitted.

3. Plaintiffs statement that all discovery should be completed in 12

months is wildly unrealistic and at odds with their statements during the parties

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 29 of 34

planning conference. As discussed above, assuming that each Plaintiff has been

treated by only two doctors a completely unrealistic assumption considering

that Plaintiffs allegedly performed for WWE from the 1960s through 2011 putting

over five decades at issue the depositions of merely those doctors and the 60

Plaintiffs would involve approximately 180 days, at a minimum, requiring over two

years to complete. Factoring in the additional time necessary for written

discovery and extensive third-party discovery of other wrestling organizations,

employers and medical researchers cited in the FAC, fact discovery alone could

not reasonably be completed in less than three years.

4. Until the Court issues rulings on the pending motions to dismiss and

motions for sanctions, it is premature to assess whether discovery should be

conducted in phases. It is possible that, depending on the Courts rulings,

phased discovery may be beneficial in a number of respects. In the Rule 26

planning conference, for example, Defendants counsel suggested preliminarily

addressing the releases signed by at least 23 Plaintiffs. However, Plaintiffs

counsel responded that they are not agreeable to that suggestion. Although fact

and expert discovery are typically phased, because Plaintiffs factual allegations

heavily rely on the alleged state of the science underlying TBIs and CTE, it must

be noted that any fact discovery would include depositions and discovery from

experts involved in the historical scientific findings and publications.

5. Defendants believe that they would require significantly more than

the 10 depositions provided under the Federal Rules. As described above,

assuming arguendo that each Plaintiff has been treated by only two doctors,

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 30 of 34

Defendants would require at least 180 depositions for merely those doctors and

the 60 Plaintiffs. Given that each of the 60 Plaintiffs claims turn on unique facts,

WWE personnel, time frames, and medical knowledge, Defendants believe that

they should be entitled to at least 10 depositions with respect to each Plaintiffs

claims.

6. Consistent with the foregoing, Defendants believe that they should

be permitted 25 interrogatories for each plaintiff. Conversely, Defendants believe

that Plaintiffs collectively should be permitted to serve a total of 25

interrogatories on them. Given the nature of Plaintiffs claims and WWEs

experience with discovery in the Singleton/LoGrasso case, there would be a

pronounced need for contention interrogatories to flesh out the basis for the

claims. For example, despite a compulsion order issued in Singleton/LoGrasso,

those plaintiffs continued to fail to identify the bases for multiple allegations in

their complaint, including identifying any alleged omissions or

misrepresentations made by WWE to them, what WWE supposedly said to

downplay the risk of CTE to them, what supposedly was done by WWE to

discredit studies on CTE alleged in the complaint, who at WWE supposedly said

that wrestlers with brain trauma did not receive such injuries from wrestling, and

when LoGrasso supposedly began experiencing the symptoms of which he was

complaining. Singleton and LoGrasso likewise were unable in their depositions

to identify the bases for such allegations. The use of contention interrogatories

will also be particularly necessary to flesh out the basis for Plaintiffs claims

regarding the alleged state of the science.

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 31 of 34

Due to the uncertainties described above, Defendants reserve the right to

seek to modify the limitations of the Federal Rules on interrogatories and

depositions, if necessary, at a later date.

7. At this time, Defendants cannot decide, and have not decided, what,

if any, experts it would call at any trial that might occur. For the reasons

described above, Defendants do not believe that it is possible to set a schedule

with respect to the disclosure of expert reports or expert depositions at this time.

Because Plaintiffs have the burden of proof, Plaintiffs must disclose any expert

reports and make such experts available for depositions before Defendants will

be in a position to determine if they desire to retain experts and/or prepare their

own expert reports. Defendants should then have at least two months after the

deadline for deposing Plaintiffs experts for disclosing its expert reports.

8. Plaintiffs statement that any damages analysis will be provided two

months after the close of discovery is unworkable as it would preclude

Defendants from being able to examine percipient fact witnesses regarding

Plaintiffs damages claims. Any damages analysis should be provided in

sufficient time to permit Defendants to examine each Plaintiff regarding their

damages claims in their deposition.

Joint Statements

1. Undersigned counsel have discussed the disclosure and

preservation of electronically stored information, including but not limited to, the

form in which such data shall be produced, search terms to be applied in

connection with the retrieval and production of such information, the location and

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 32 of 34

format of electronically stored information, appropriate steps to preserve

electronically stored information, and the allocation of costs of assembling and

producing such information. The parties agree to abide by their general

obligations under the Federal Rules and common law to preserve documents and

information.

2. Undersigned counsel have discussed discovery procedures that

minimize the risk of waiver of privilege or work-product protection, including

procedures for asserting privilege claims after production. The parties will follow

the procedures set forth in Paragraph 18 of the Courts Standing Protective Order

for asserting claims of privilege after production.

F. Dispositive Motions

Plaintiffs Statement

Dispositive motions will be filed one month after the close of discovery.

Defendants Statement

Defendants believe that dispositive motions may be filed any time and not

later than 60 days after the close of discovery, including all expert discovery.

G. Joint Trial Memorandum

Plaintiffs Statement

The joint trial memorandum required by the Standing Order on Trial

Memoranda in Civil Cases will be filed on a date to be set by the Court following a

decision on dispositive motions.

Defendants Statement

The Joint Trial Memorandum required by the Standing Order on Trial

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 33 of 34

Memoranda in Civil Cases will be filed within 60 days after the Court rules on all

summary judgment motions, if any claim remains to be tried.

VI. TRIAL READINESS

Plaintiffs Statement

The case will be ready for trial by within 2 years of the commencement of

discovery. As officers of the Court, undersigned counsel agree to cooperate with

each other and the Court to promote the just, speedy and inexpensive

determination of this action.

Defendants Statement

Defendants believe that this case will be ready for trial within 120 days after

the Court rules on all summary judgment motions, if any claim remains to be

tried.

As officers of the Court, the undersigned counsel agree to cooperate with

each other and the Court to promote the just, speedy and inexpensive

determination of this action.

Plaintiffs

By: s/ Konstantine W. Kyros__ Date: February 1, 2017

Defendants

By: s/ Jerry S. McDevitt Date: February 1, 2017___

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Case 3:15-cv-01074-VLB Document 290 Filed 02/01/17 Page 34 of 34

CERTIFICATION OF SERVICE

I hereby certify that on February 1, 2017 a copy of foregoing was filed


electronically and served by mail on anyone unable to accept electronic filing.
Notice of this filing will be sent by e-mail to all parties by operation of the Courts
electronic filing system or by mail to anyone unable to accept electronic filing as
indicated on the Notice of Electronic Filing. Parties may access this filing
through the Courts CM/ECF System.

/s/ Jeffrey P. Mueller _________


Jeffrey P. Mueller (ct27870)

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