Litigators of the Week: Grabbing the Prize After the Prize Fight
Floyd Mayweather's defeat over Conor McGregor wasn't the only boxing win worth talking about this past week—lawyers at O'Melveny & Myers scored a total knockout of dozens of class actions brought over a 2015 bout dubbed the “Fight of the Century.”
August 31, 2017 at 09:50 PM
5 minute read
Floyd Mayweather's defeat over Conor McGregor wasn't the only boxing win worth talking about this past week—lawyers at O'Melveny & Myers scored a total knockout of dozens of class actions brought over a 2015 bout dubbed the “Fight of the Century.”
Consumers alleged they were duped into purchasing tickets to watch the 2015 fight between Mayweather and Emmanuel “Manny” Pacquiao. Most shelled out $89.95 to watch the Las Vegas match on HBO or Showtime pay-per-view. They sued after Pacquiao disclosed just after he lost the fight that he had injured his shoulder a month earlier.
Their argument, in a nutshell: They wouldn't have paid to watch had they known one of the superstar boxers was injured.
Daniel Petrocelli and Jeffrey Barker led a team at O'Melveny & Myers that represented Pacquiao and boxing promoter Top Rank Inc. On Aug. 25, one day before Mayweather's fight against McGregor, U.S. District Judge R. Gary Klausner in Los Angeles granted dismissal.
“In this case, plaintiffs ultimately received what they paid for, namely: the right to view a boxing match between Manny Pacquiao and Floyd Mayweather, sanctioned and regulated by the Nevada State Athletic Commission,” Klausner wrote. “Plaintiffs had no legally protected interest or right to see an exciting fight, a fight between two totally healthy and fully prepared boxers, or a fight that lived up to the significant pre-fight hype.”
That might seem like an obvious outcome. But to nail the win, the O'Melveny team had to persuade Klausner to follow a line of cases that shut down suits by “disappointed fans” and to distinguish the Pacquaio case from those where ticket purchasers have collected damages when teams lied to fans, for instance about plans to relocate to a new city, in order to boost ticket sales.
Plaintiffs lawyers pointed to Pacquiao's statements before the fight that he was “conditioned 100 percent spiritually, mentally, physically” and feeling “good and ready” as profit-driven misrepresentations in line with those cases.
But the judge relied on rulings, cited by Petrocelli, in other “disappointed fans” cases, such as when boxer Mike Tyson bit off the ear of Evander Holyfield, or when the New England Patriots videotaped the sideline signals of the New York Jets.
“The gravamen of all the claims was the same: They all rested on this notion there should be legal liability for undisclosed conditions of the athlete in a sporting event,” said Petrocelli, a Los Angeles partner who served as lead counsel for the defendants. “And the court rejected that argument and agreed with the prior cases and with our position that you buy a license to see an event—you don't get any guarantee to the outcome.”
Klausner noted that injuries are common in competitive sports and athletes are lionized for pushing through pain. In cases where sports fans were permitted to sue, misrepresentations had been made about objective business or financial factors, not about the nature of the competition or the quality of the athletes' performance.
“Assurances that one side will prevail and exaggerated guarantees of stellar performances are both part and parcel of competitive spectator sports (especially fighting sports like boxing),” Klausner wrote. “The fact that such pre-event statements are inherently unreliable is precisely why fans even bother showing up.”
Barker, a partner in Newport Beach, California, served as liaison counsel in the litigation. The O'Melveny team also included Los Angeles partner David Marroso and counsel Esteban Rodriguez. Ruth Bahe-Jachna, a Chicago shareholder at Greenberg Traurig, represented Mayweather and his promoter. She also cited the “disappointed fans” decisions in a separate motion to dismiss on behalf of her client, who she called an “innocent bystander.”
Petrocelli is a well-known Los Angeles litigator who's no stranger to high-stakes cases. He defended Donald Trump in class actions filed against Trump University by angry students who claimed they'd been defrauded, (a $25 million settlement in the case is on appeal) and is pursuing litigation demanding the developers of San Francisco's sinking Millennium Tower bear all costs of repairing and maintaining the structure..
A lot more was riding on Pacquiao's defense than a single boxing match or even the hundreds of millions of dollars in pay-per-view and ticket sales, Petrocelli said.
“Athletes play hurt all the time,” Petrocelli said. “So this decision is very important in affirming that principle because otherwise there would be a floodgate of lawsuits every time someone was dissatisfied with a performance. There would be no end to the litigation.”
Lead plaintiffs' attorney Hart Robinovitch, a partner at Zimmerman Reed in Scottsdale, Arizona, said he planned to petition the U.S. Court of Appeals for the Ninth Circuit for reversal.
He said the class actions were more akin to prior cases that dealt with business decisions, not athletic performance. “Our claim is they intentionally kept this on the hush hush, and did not tell fans he was injured,” he said. “We believe that is a business strategy and falls squarely in that latter type of case.”
The dismissal hasn't stopped other lawsuits from being filed over high-profile sports events. Showtime was hit with two class actions this week claiming consumers had streaming issues when attempting to view Mayweather's duel with McGregor.
That begs the question: Did Petrocelli, longtime counsel to Pacquiao, watch the Mayweather match?
He said he ended up watching it after his 12-year-old son insisted—but on YouTube for free the day after it aired. “I didn't want to spend $100 to watch a Floyd Mayweather fight,” he said. “I'm very loyal to my client Manny Pacquiao.”
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