it please the court good morning your honor my name is hard rabinovich and i represent the plaintiffs in these cases in these consolidated cases i'd like to reserve five minutes for rebuttal the plaintiffs and class members in this case are victims of a fraudulent scheme who are induced into purchasing something here tickets and pay per view packages to a championship fight that they otherwise would not have purchased them in record prices and in record quantities under false pretense of because material facts were intentionally concealed from them prior to the point of sale in order to specifically in order to drive those sales as a result in the aftermath commentators in the boxing industry and the sports media and the general news media describe defendants conduct through such all terms as pulling off a magnificent con engaging in the fraud of the century with the result that the paying public was fleeced such terms  not ordinary what used to describe mere disappointed consumers who bought something and are merely not pleased with that the product or the service did not meet their expectations rather they describe conduct which amounts to actual and after fraud well every year revenues in the sports area seem to get higher and higher and climb into the stratosphere including the numbers in this event which were was one of the largest sports events in in history this case is about the little guy the fans who fund those type of deals and transactions or some court here's here's what i find difficult about the allegations in your case because as i read it through for example one of the complaints the california consolidated complaint is it sounds very much as if you're relying for the fraud theory on omissions it is rather than affirmative misrepresentations i know there's  would arguably fall within the arena of affirmative misrepresentations but really it sounds very much in a mission failure to disclose fieri and the failure to disclose is really about the health condition of an actually what do we do with the fact that it's not at all uncommon for athletes especially at the levels to always play through some type of injury where do you draw the line if you were pacquiao had a torn rotator cuff that caused him to stop training sending a sparring partners homes with instructions to keep it specifically confidential and quiet three weeks before both arms and carries right arm in a cast he there were comments out made after the fight that he was unable to use the arm that had the injury anywhere near what his normal performance would have been and i think who put it best in this case with h b o was only commentator jim lampley who said after the fight that this is what you had here was a situation where some fans may have thought it would have been a noble endeavor for someone like mr paki who had been injured to go into the go into the ring and try to do his best but the only way that that would awash with fans and consumers who were purchasing this at the highest price ever for one of them for this type of event would have been had they disclosed that in advance so the consumers knew what they were purchasing but that's like it to what you're saying if the complaint is based on a theory of a mission then there's got to be a duty to disclose hereto you saying well if an athlete is injured you've got to disclose it where do you draw the line what types of injuries because it's not uncommon all right well the athlete hurt his shoulder now he's going to rest up so that he can be cleared by the doctor which happened in this case and by the regulatory authority is being fit to go forward so it's a regulation compliant event so you're saying under those circumstances there has still has to be an affirmative duty to disclose because the consumer might want to know that in evaluating whether they want to attend the match there is and there is a duty to disclose because this is an omission claim and just as in the sharp end he a case there was a duty to disclose found  because there was an active concealment or partial disclosures where they represented and said as cited in paragraph seven of the california complaint that akio c stated that he was one hundred percent his physically  going into this fight which was and which was not true and if what if you speak a half truth you have to come forward and give and speak the whole truth if you do that and that's what the court in the  mr pacquiao had a torn i've torn rotator cuff and had been instructed had stopped training gone to see orthopedic surgeons had been instructed to rest the shorter and not fight for forty days as the media reports in the aftermath of this fight me clear no reasonable consumer would have purchased these pay per view packages had that fact in the schools were obviously you're aware of this whole license best case in this area which the plaintiffs rely and which makes sense out of the license approach and the fraud you want to see concealment approach in the differences in those legal theories is the sharp end cave vs los angeles rams case which has been the on now for i think the case hinged on it being a material fact a fact that the consumer the ticket buying consumer would have wanted to know at the time they made their decision just like consumers who buy any other good and service of that and the decision was not restricted it's very important if you look at footnote ten of that opinion the decision was not restricted just to the type of situation where a team moves the example given by the california court of appeals and left a note says that had the why about signing a star quarterback in order to induce sales the consumers are the consumers who bought tickets in reliance on that type of representation also would have a fraudulent affirmative representations i think your case which would be easier rather than real relying primarily on theory of omission i think the distinction is is there a known need lied about pacquiao fighting and then another fighter got substituted in and that would go right in line with that footnote that you rely on i think that's the that's one of the distinctions and it all comes into the materiality analysis in a fraud claim the uniqueness of this type of event  this type of fight unlike the type of examples that have been given by the defendants in their briefs and arguing that in their policy arguments will be some type of floodgates of litigation that's not the case here what you have in this case is a unique of that it took five years to plan it there was tremendous hype behind it it's not like a football game that is scheduled if it will go on regardless of anything there's a whole bench of keane's there that can be substituted if someone gets injury it gets injured and you expect that those are things that are contemplated in in sport and would make any type of representation perhaps fail the materiality test boxing is unique it's a one on one a vent between two specifically selected prizefighters and there is no substitution what happens when someone gets injured is th postponement and if you look at the the quote in the complaint by the participants in the scheme such as mr roach mr paki has trainer they talked about this and went forward with it for a business purpose  what the court did here is if it recognized that you can have a fraudulent concealment claim that is unique and distinct from a contract claim however in analyzing  the materiality prong of a fraud analysis or a statutory fraud analysis came up with a two pronged analytical approach is what judge caused or called it and said that the misrepresentation or omission deals with competitive issues things that happen in the heat of a game or a referee making a bad call or coach making a bad strategy move those are not reasonable statements or omissions that someone a reasonable consumer would rely on because of the very uncertainty of sport in great distinction to that you have decisions that are made for business reasons and that's what we played here and that's the error reversible error that the district court made here which is our complaint says that this fact that mr pack you know had zero had a severe injury was concealed and suppressed from the public and the consumers buying this for the suppose if it can only reason to drive these sales into record numbers and had that material fact been disclosed to consumers consumers would have acted differently and if there's a known fact that is concealed from consumers specifically to induce sales and push sales that gives right to a valid claim for consumer fraud and the fact issues behind the disputed fact issues behind that are not proper to resolve on a motion to dismiss but must go forward to a later stage where the jury gets to decide was this a material fact that a reasonable consumer would have acted differently on that materiality is a fact question and so is intent what is the intent of the defendants is it that they believe pacifically did this because they were scared they were going to get paid like the head of usada the drug testing agency sa that they did and just about everyone else said that this was a cash grab they kept this quiet because they were scared they weren't going to get paid and risk this this humongous payday or was it and i competition issue they did it because they d as the defendants now stating that they didn't want to disclose a weakness which there are many holes in that argument that i could address but i think if you if you apply the test that we advocate and the california court of appeals to and particularly that footnote ten where they say if a team or a sports promoter high as material facts from ticket buying consumers and the consumers purchase tickets based on those inducements there's a type of claim that would not be able to proceed because as a you expect there to be to be an understudy in an in a play or an opera or whatever it may be just like a football game or a basketball game there's a whole bunch of players when you go see the lakers here you don't have a guarantee that will bron james is going to play the whole game he could get hurt and there's another guy who's going to play as positions because they're on the bench and that's expected that is the uncertainty of sports we have here is something far different this was a material fact this was a known fact it wasn't an objective levi or verifiable fact that was known well before they sold the tickets and if you and the i think the correct analysis here again is in sharp n j and the other consideration here is when should the risk that's when should the risk shift from the entity selling the tickets to the fans they approach we take effectively balances that against the integrity of the game and that's really what the n f l has done i believe it's footnote sixteen of our reply brief we cite the n f l injury policy which is does require immediate reporting of injuries to players and it's very detailed and it does show that to and to uphold the integrity of the game especially a game such as football or boxing where they know that there's widespread fan interest humongous dollars involved and betting involved that to uphold the integrity of that there must be disclosure so that the fans know what they're buying at the time and this isn't the case of a form of a football player getting hurt in the first quarter and not be being able to finish or some nature competitive sports if you're requiring an affirmative duty to disclose injuries that an athlete is going to kind of nurse the health and do her best despite like a sore ankle or swelling nice for example i don't think it changes the nature of sports at all your honor again going back to what mr lampley said who was probably one of the foremost experts in boxing he's been the voice of boxing on o the week commentator for for many many years now and what he said is there's nothing to stop said this fight could've gone forward and mr pacquiao could have gone into the ring but his comment and i quoted in our reply brief is that he felt horrible for anyone who bought this because they weren't told what they were buying packie i wanted to go into the ring and someone think that's a noble endeavor to do he could have done that but they had to tell the fans that he was doing it while injured and if they had done that they won a sort of five hundred million dollars of pay per view packages it would have been a considerably lesser amount but at least then the people who did purchase the pa formulate it the district court got it exactly right a ticket to a sports event is a license to view whatever transpires at the event and there is no right to a refund because the event they did did not live up to expectations or pre event statements or non disclosures this has been generally called the license approach and it is not confined to contract theories and all the prior cases all the comparable cases there are all the gate cases and i guess this one may be called shoulder gate you honor but in in in in the barriers case from the seventh circuit the indy gate case where the fans expected twenty race cars but there was no allegations of fraud in that case let's there oh yes there was allegations of pre event disclosures and there were certainly allegations of fraud in the mayor case which is the principal case your honor from new jersey that's the spygate case that the third circuit decided where the patriots were found to have broken rules by spying by videotaping coaching signals and there there were claims for fraud in that case there may have been claims for fraud in the in the in the in the eight cases well we also have the bite gate case that's the christie case where there was a premeditated planned by mike tyson to get disqualified we have the bounty gate case from louisiana that's the man seen a case where the n penalized the saints for hard tackles that would injure opposing players what the judge did is he went through all of these cases your honor and they came down to some essential propositions which he i think correctly synthesised which is this is that you don't with where the essence of your grievance is about the quality of the performance the nature of the performance  strategy of the performance what transpired in the actual event you don't get your money back no matter what was said beforehand by who or what was not said  that he didn't have a shoulder injury and all that the matter that that doesn't matter for a few or a couple of reasons first of all the the questionnaire was not disclosed to the public that was  nevada state athletic commission and he was pre cleared by the fight he was examined by physicians and he was cleared and found fit to fight after disclosing the shoulder injury this is all sanctioned unregulated  athletic commission and that's that's right in the court's opinion in terms of the statements that were made before the fight which are chronicled on pages thirteen in fourteenth of the excerpts of record your honor these are all the typical hype pre event promotional statements center made all the time i'm and i'm feeling great a hundred percent well conditioned ready to go a could you imagine the danger to a fighter of all people if he had to say i'm aggravated a prior shoulder injury and i think we should admit arguments that can be made over whether the statements and commissions in this  case really are what is within the realm of what you can reasonably expect fighters specially in boxing to say but as an analytical matter when it comes to these types of cases could there be affirmative misrepresentations or omissions that are so material that it gives rise to consumer fraud claims and those and that is exactly how the cases have broken down your honor and the and the cases where the misrepresentations or the omissions have concerned commercial aspects of the purchase of the ticket unrelated to what transpires at the event so for example when the brown when the browns organization said they were not going to move to out of cleveland and season ticket holders bought their tickets expecting a right to renew the following year only to find out they were robbed of that right because the team moved to baltimore the same thing in the sharpe n c a a case where the rams said they were they were staying put people bought season tickets and it turned out that they lost their right to renew because a fan in l a or anaheim isn't going to get a seat in st louis the following year that's where the courts have drawn the line and every single case in which the misrepresentation or the omission or regardless of the name of the cause of action contract consumer fraud outright fraud when ever it relates to the actual performance or the quality or the strategy or the competitiveness of the event that is where the courts have drawn the line because they're not saying promoter says i'm going to put up a fighter who has an undefeated record thirty fights in the past and hyped it up and people buy tickets and this is a fighter who's never won a fight that's ok because because while be ultimate purpose is to make more money it also is a rich misrepresentation that affects the fighters performance and the consumer's evaluation is the how well this fighter can fight you know if if if at this fight incentive seeing manny pacquiao fight floyd mayweather it was another fight or you get your money back if you go to the mayor mirror case points this out i mean there are some hypos that excrete like you know if this were a bad match and you pay for a boxing match or you go to pay to see an n f l game and there's not n f l players yes there are representations which are so extreme but we are ten thousand miles away from those those choices and we have posts on one end of the extreme where the calls to be a lot easier but when you're talking about representations that affect performance money issue is a red herring your honor for this reason ault all ticket promotion is about money it's always about trying to sell tickets the fact that a purchaser the fact that promoters and sports teams and participants and people involved with the event the leagues are out there promoting these events is always to induce fan interest he'll watch the events or buy tickets or or happened was was something that related to the actual event itself here or what we're talking about is the point of complaining that pacquiao had prior injury that he riyadh were vacated that nonetheless the nevada athletic commission found him fit to fight after disclosing the injury and he went in and fought twelve rounds won a third of them no knock downs went the whole distance are the patriots supposed to disclose when tom brady has a severe migraine headache before a game or  so that opposing players can put a target on him by time or doesn't make a difference unlike the tom brady football situation or miranda with the hamilton play that there's a group or it and people are used to substitutes in it but one is a one on one thing like this boxing match where there would be no understudy the substitute does that make a difference it doesn't make a difference your honor if the nature of the grievance as here is a complaint about your dissatisfaction with what happened at the fight the grob a man of the claim here is that he went into a fight with a shoulder that had been previously hurt years ago reinjured again rested treated and examined by physicians and allowed to fight if he wasn't fit to fight under the nevada at administrat code this is regulated and sanctioned by the nevada say athletic commission it would not have been allowed to fight as he was cleared to fight as the doctors said in that circumstance it doesn't matter who said want before hand manny pacquiao shows up in fights floyd mayweather he could run around the ring the whole time and try to avoid getting hit in fact a lot of fighters do that because they have injuries and in it also if you had a disclosure injury as a boxer of all kinds of sporting events if you had a soreness or a particular area where you were very vulnerable you'd be a target for your opponent made a difference in the knock down the first thirty seconds no your honor i mean sonny liston when they call that the phantom the phantom punch he went down in the first round of the second fight against muhammad ali and everybody cried foul then but that's that's the nature of sports says deep as the courts have pointed out we're not talking about buying a hammer made in the usa when it turns out it's not made in the usa we're talking about buying uncertainty unpredictability drama controversy things that people can argue all the time the things that relieve us from the daily routine and rigors of our lives that's what makes  ports so addictive to people that's what makes it so appealing the uncertainty the unknown the unpredictable and when the court start regulating what people can say and can't cannot say beforehand about the quality or the strategy or the competitiveness or the performance of the event itself that would open the floodgates and have the courts as the mayor court said actually almost they got knocked out the saints got knocked out of going to the super bowl because they failed to call a passing offense a lawsuit was brought that lawsuit was dismissed so in the nature of these representations and omissions involve something extrinsic to the event as in the ram case or the cleveland brown case or if you told fans i'm signing le bron change the he's actually signed a contract he will be on the team and all of a sudden there's all these purchases and then you show up and it turns out it's not le bron james it's raymond james and he's a bench warmer you get your money back in good morning and more troubles from greenberg traurig and i represent the defendants may void when mayweather and may win their promotions his promotion company i would like to take the majority of my time to focus on something that hasn't been addressed by either of my skin colleagues and in particular it is the difference in quality of the position of the various defendants we have lumped a whole variety of defendants kampman jury your honor specifically the information there is that mr roach saw him recognized him took half a day to put him out and he was there for half a day that's the allegation that was set forth in the material below let's assume for purposes of this argument that is correct that there was a mole in the camp and there was some knowledge of an injury that occurred in camp because we don't know whether the mole was there before the injury or the mole is there after the injury none of that's there the point here is knowledge of an injury is not knowledge of the medical condition or the doctor's prognosis or the doctor diagnosis or the ability for the fighter to truly perform another words there is a complete lack of adequate c in the pleading because without a clear understanding that the injury is of severe nature that would implicate what he was able to do in the ring there would be no knowledge equivalent or sufficiency we must again acknowledge that the only person who really knew how severe his injury fought twelve rounds and he won a third of them in some judge's estimation in that instance the knowledge is lacking for the mayweather defendants in particular and i suggest are similarly lacking for h b o who would not be standing in the doctor's office recording this as well there is nothing in anglo american jurisprudence that suggests that an opponent in a sporting contest would have an affirmative duty or obligation to disclose an injury of an opponent even if they were aware of it and the reason for that is simple and that is because if we had that affirmative obligation of disclosing something if the information accurate third party hearsay second or third removed because it was by someone else who sought not the individual we would impose upon the court a flurry of litigation unlike anything we've ever seen before because interference with contractual advantage claim by any of those parties who are now not getting the full benefit of the economics when they attend a professional fight in other words what is being proposed by the class action below is that now we're going to impose not only a duty on the injured party but we're going to impose a double duty on their opponent if they suspect some type of injury that's going to implicate  this it would go directly to as the court below noted the strategy that mr mayweather would have in deciding if he disclosed that the mr packer would know to avoid turning his by in a way that that punched there had been an allegation specifically by mr pack you know at the end of the fight that mr mayweather knew something about the injury because he targeted a shoulder i respectfully suggest your honour's that in fact any skill fighter when landing a blow and seeing a grimace on your opponent's face could this did detect an injury or potential problem and could just as readily or  actively the right after that particular spot again and again and again we see that all the time with skilled people in the fight game so just because there is that statement by mr pack you know that mr mayweather must have kno because of the way it was targeted that implicates nothing more than awareness by an opponent in the ring that he is getting that he's getting somewhere when he hits a particular opponent in that fashion in particular if this court were to impose a brand new duty on all participants at all sporting contest that they must in fact to go public with any information they hear rumor they know information they change sports as we know it because there would be no uncertainty no no chance no reason for the contest because essentially the odds makers would figure it out for everyone and you just say don't bother because the odds are not there it's telling in this case that the professionals in the sports game said we got exactly the fight we expected because floyd mayweather is a vincent champion he is exceptional skilled in being able to essentially defend himself at all times we expected a boring fight and so when the complaint is it was a boring fight it's what most of the professionals had and to support it from the outset i would conclude simply by saying this court should not certain who do to be on opponents in sporting contest that has never been for before been recognized and should not be recognized now quick points because i don't think i have a lot of time here your honor what mr petrocelli is arguing is that sports fans have absolutely no rights in this every sports and business is really exempt from consumer fraud was and can never be held accountable that's not the case the cases that he relies the formula one case that tyson case the ballot a case none of those cases in contrast to the sharp end kind of a line of cases in or here involved a known fact that was concealed prior to purchase in order to induce sales the ballot check case which is the most likely case by the third circuit the teams the seller of those tickets was the jets the patriots were the visiting team who came in and cheated so there was not any attempt by the jets who didn't know about the cheating to suppress known facts from their fans in new york and sell and then sell the tickets and try to make more more sales based on the concealment of some known fact is completely different than the situation where you had all the defendants together and the promotional companies trying to maximize the number of sales because unlike an arena or a stadium where there's a finite number of seats it was a they could have sold an infinite number of paper views here which was what their go where any case holds the opponent  facts and their speaking of of half truths mr may whether came out and said that he knew everything as did mr our b the head of mayweather promotions that they knew everything that was happening in that camp and if they knew something and concealed the material believe that the basically knows everything that's happening and i think posing teams can't i think that's a fact i think that's a fact question and that's not properly employees is stronger than against the mayweather defendants but i do think that and do believe that the claims against the mayweather defendants are brought in good faith and to the possibility standard given that they said they knew everything footnote ten makes clear when you sign a player that has to do with the players you're putting on the field to the line is not drawn between what happens on the field and what happens off of off of the field it to materiality standard just like any other consumer fraud case and it and while it's not necessary for this court to draw a line to govern how boxing or football or baseball rules are materiality standard and you don't have to draw those lines with regard to auto products or food products that are mislabeled if the standard for consumer fraud is is it a material fact is it doesn't reach the standard of causing a consumer to have done acting reasonably under an objective standard to have acted differently had had they been known had they been told the congealed fact would be have acted differently and i think the unique op for that happened in the aftermath of this monumental sports event in may of two thousand and fifteen it was so different then the examples that they want to give and even the use your honour's of hinted idea about ordinary sports injuries or calm brady having a headache somebody had getting a headache the morning of the game does not induce any sales happened after the ticket before purchased we've got the point that you've gotten over time thank you very much to both sides for appreciate your time as well you're very helpful arguments in this interesting case the matter is submitted