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GOLDEN BOY PROMOTIONS LLC and BERNARD HOPKINS,

Plaintiffs, VS.

ALAN HAYMON, ALAN HAYMON DEVELOPMENT, INC, HAYMON SPORTS, LLC, HAYMON BOXING MANAGEMENT, HAYMON BOXING LLC, HAYMON BOXING: MEDIA GROUP HOLDINGS LLC, WADDELL & REED FINANCIAL, INC., WADDELL & REED, INC., IVY ASSET STRATEGY FUND, WRA ASSET STRATEGY, IVY FUNDS VIP ASSET STRATEGY, RYAN CALD WELL, and DOES 1 through 20

Defendants.

CASE NO. CV 15-3378-JFW (MRWx) DEFENDANTS NOTICE OF MOTION AND MOTION TO STAY ACTION PENDING ARBITRATORS DECISION ON ARBITRABILITY AND RELEASE OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF ALAN HAYMON AND JEREMIAH REYNOLDS IN SUPPORT THEREOF Judge: Hon. John F. Walter Date: August 10, 2015 Time: 1:30 p.m. Courtroom: 16 (Spring Street)

Complaint Filed: May 5, 2015

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP HOWARD WEITZMAN (SBN 38723) hweitzman()kwikalaw. corn

JEREMIAH1. REYNOLDS (SBN 223554) j [email protected] 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 Telephone: 310.566.9800 Facsimile: 310.566.9850 Attorneys for Defendants Alan Haymon, Alan Haymon Development, Inc., Haymon Sports, LLC, Haymon Boxing Management, Haymon Boxing LLC, Ryan Caldwell

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

MOTION TO STAY ACTION Case No. 2:15-cv-03378-JFW-MRW

Case 2:15-cv-03378-JFW-MRW Document 22 Filed 07/06/15 Page 1 of 15 Page ID #:122

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TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF I RECORD:

PLEASE TAKE NOTICE that on August 10, 2015, at 1:30 p.m., or as soon thereafter as counsel may be heard in Courtroom 16 in the United States District Court for the Central District of California, located at 312 North Spring Street, Los Angeles, California 90012, the Honorable John F. Walter presiding, Defendants Alan Haymon, Alan Haymon Development, Inc., Haymon Sports, LLC, Haymon Boxing Management, Haymon Boxing LLC, and Ryan Caldwell (collectively, "Defendants") will appear and move the Court for an Order staying this action as to Defendants until the Arbitrator in the concurrently pending arbitration between the parties rules on the question of arbitrability and whether the claims alleged in this action have been released pursuant to a settlement agreement containing a broad arbitration clause. Defendants Motion is based upon this Notice, the attached

I Memorandum of Points and Authorities, the Declarations of Jeremiah T. Reynolds and Alan Haymon, all papers and pleadings on file herein, and on such other oral and documentary evidence as the Court may receive at or before the hearing on this Motion.

PLEASE TAKE FURTHER NOTICE that this Motion is made following the conference Of counsel pursuant to Local Rule 7-3, which took place on June 29, 2015. (See Joint Pre-Filing Statement Filed on July 1, 2015.)

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I DATED: July 6, 2015 KINSELLA WEITZMAN ISER KUMIP & ALDISERT LLP

Is! Howard Weitzman Attorneys for Defendants Alan Haymon, Alan Haymon Development, Inc,, Haymon Sports, LLC, Haymon Boxing Management, Haymon Boxing LLC, Ryan Caldwell



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Terminix Intl Co. v. Palmer Ranch Ltd., 432 F.3d 1327 (11th Cir. 2005).........................................................................8

United Steelworkers ofAm. v. Warrior & Gulf Nay. Co., 363 U.S. 574 (1960) ......................................................................................... 6

Visa USA, Inc. v. Maritz Inc., 2008 WL 744832 (N.D.Cal. 2008).................................................................... 7

Westinghouse Hanford Co. v. Hanford Atomic Metal Trades Council, 940 F.2d 513 (9thCir.1991) .............................................................................. 6

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STATUTES 9U.S.C.2 .................................................................................................................. 5 9U.S.C.3 .................................................................................................................. 7 Federal Rule of Civil Procedure 8(a)...........................................................................4 Federal Rule of Civil Procedure 12(b)(6) .................................................................... 4

IRULES JAMS Streamlined Arbitration Rule 8 ....................................................................4, 7



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MEMORANDUM OF POINTS AND AUTHORITIES

2 11. INTRODUCTION AND SUMMARY OF ARGUMENT 3

Defendants Alan Haymon, Alan Haymon Development, Inc., Haymon Sports, 4 LLC, Haymon Boxing Management, Haymon Boxing LLC, Haymon Boxing 5 (together, "Haymon"), and Ryan Caldwell ("Caldwell") (collectively, "Defendants") 6

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Imove for the Court to stay this action. By July 29, 2015, less than a month from now, an Arbitrator will be poised to rule on whether all of the claims in this action against Defendants have been released pursuant to a Settlement Agreement and Mutual Release ("Settlement Agreement").

The pending arbitration with JAMS was filed before this lawsuit, and the Settlement Agreement contains an arbitration clause providing that the Arbitrator, the Honorable Daniel Weinstein (Ret.), has exclusive jurisdiction to determine

I whether the claims at issue here have been released pursuant to the Settlement Agreement or are otherwise subject to arbitration. The Arbitrator will begin receiving briefing on that very issue on July 10, 2015, and a hearing is scheduled for July 29, 2015.

Because issues in the arbitration directly impact this litigation, the Federal Arbitration Act requires that this matter be stayed until the Arbitrator has determined whether or not the claims are subject to the Settlement Agreement. It would also waste the resources of the Court and the parties to litigate claims now when the Arbitrators impending ruling could moot the entire case against the Defendants.

Plaintiffs have attempted to plead around the Settlement Agreement by plucking a date - January 1, 2015 - out of thin air for Plaintiffs purported damages

A redacted version of the confidential Settlement Agreement has been attached as Exhibit A to the Declaration of Alan Haymon. Defendants do not believe the redacted portions are relevant to the issue of whether a stay should be granted. Nonetheless, should the Court require an unredacted version for its review, Defendants will immediately lodge an unredacted version and file a motion to seal.



because it postdates the Settlement Agreement and by naming non-parties to the Settlement Agreement. This transparent gamesmanship fails. See, e.g., Chastain v. Union Sec. Life Ins. Co., 502 F. Supp. 2d 1072, 1081 (C.D. Cal. 2007) ("Plaintiff cannot artfully plead around an arbitration agreement simply by naming a non-signatory defendant who acted in concert with the signatory"). The express

I provisions of the Settlement Agreement bind Plaintiffs and Defendants to the arbitration and release provisions contained therein. And Plaintiffs cannot arbitrarily postdate their alleged damages to avoid the Settlement Agreement. See In reA2P SMS Antitrust Litig., 972 F. Supp. 2d 465, 495 (S.D.N.Y. 2013)

I ("[p]arties to arbitration agreements cannot be permitted to plead their way around arbitration requirements by asserting predicate facts that fall within the scope of the agreement, but limiting the temporal scope of their damages so as to avoid the agreements").

Plaintiffs refused to stipulate to a temporary stay of this action pending the

I Arbitrators ruling on the issues of the scope of the release and arbitrability, thus necessitating that Defendants bring this Motion. Defendants respectfully submit that the Court should enter an order temporarily staying this action pending resolution by the Arbitrator as to whether the claims alleged herein are subject to the arbitration clause or release provisions of the Settlement Agreement.

II. STATEMENT OF FACTS AND ALLEGATIONS 21

A. Relationship Of The Parties And The Settlement Agreement 22

Plaintiff Golden Boy Promotions, LLC is a boxing promotion company that 23 was founded by Oscar De La Hoya and is co-owned by Plaintiff Bernard Hopkins. 24 (Compl., pp. 1-2.) Haymon manages or advises various professional boxers, some 25 of whom had promotional agreements with Golden Boy entities and some of whom 26 have had their bouts promoted by Golden Boy entities but were not a party to any 27 express or implied promotional agreement with Golden Boy. (Declaration of Alan 28 Haymon ("Haymon Decl."), Ex. A, 2.4.) Golden Boy and Haymon mediated

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1 various disputes between them and reached a global settlement that was 2 I memorialized in the Settlement Agreement, which was executed on December 19, 3 1 2014 2 (Id., Ex. A.) The Settlement Agreement contains broad mutual releases 4 between the parties. (Id., 4.1-4.8.) The Settlement Agreement also contains a 5 I broad arbitration clause as follows:

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Any and all disputes arising out of relating to or regarding this Agreement - including but not iimited to its implementation, interpretation, validity or enforcement - as well as any GB Reserved Claim shall be exclusively and solely resolved through an expedited binding and confidential arbitration before the Hon. Daniel Weinstein, Ret. The Parties agree to waive any disclosure that needs to be made by Judge Weinstein in order for such binding proceeding to be enforceable. Judge Weinstein will decide how any such proceeding shall be conducted, including whether and how discovery will be conducted, whether and how evidence will be presented, the nature of any briefing and argument and the venue of any such proceeding, and in the absence of any decision by Judge Weinstein, such matter shall be as determined by the JAMS Streamlined Arbitration Rules and Procedures.

(Id., 6. 1.) The Settlement Agreement further provides that "[t]his Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, stockholders, employees, successors and assigns of the Parties and any parent, subsidiary and/or affiliated entity of each of the Parties." (Id., 8.6.)

On January 8, 2015, Haymon exercised its bargained-for and unfettered

2 "Golden Boy" was defined in the Settlement Agreement to include Golden

Boy Boxing, LLC, Golden Boy Boxing Holdings, LLC, Golden Boy Enterprises, LLC, Oscar De La Hoya, and the Oscar De La Hoya Separate Property Trust. "Haymon" was defined as Alan Haymon Development, Inc., Haymon Properties, LLC, Haymon Holdings, LLC, and Haymon Sports, LLC.

For example, Golden Boy released "Haymon, each Haymon Boxer, and each of their affiliated persons and entities, including without limitation directors, shareholders, members managers, agents, attorneys, officers, empcoyees, and their respective successors, erom any and all claims, actions, debts or liabilities of any kind, whether known or unknown, fixed or contingent, from the beginning of time through the date of the execution of this Agreement, including, but not limited to, the claims in the arbitration filed by Golden Boy and any other claims which arise out of, or relate to, Schaefers employment with Golden Boy and any other activities and agreements between Haymon and/or the Haymon Boxers on one hand, and Golden Boy on the other hand." (Haymon Dccl., Ex. A, 4.3.)

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I I like defense to arbitrability." Moses H Cone Mem. Hosp. v. Mercury Const. Corp., 1460 U.S. 1, 24-25 (1983).

3 Where a contract contains an arbitration clause, courts apply a presumption in favor of arbitrability, and the party opposing arbitration bears the burden of establishing that the arbitration agreement does not apply. AT&T Techs. v. Commc ns Workers, 475 U.S. 643, 650 (1986); Westinghouse Hanford Co. v.

I Hanford Atomic Metal Trades Council, 940 F.2d 513, 517-18 (9th Cir. 1991). The presumption is particularly powerful where the arbitration clause is broad, such as the case here. Id. ("Where an arbitration clause is broadly-worded, the court should presume that claims are covered by the provision "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.") (quoting United Steelworkers ofAm. v. Warrior & Gulf Nay. Co., 363 U.S. 574, 582-83 (1960)). Put another way, "[fl require arbitration, [an aggrieved partys] factual allegations need only touch matters covered by the contract containing the arbitration clause. . . ." Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir.1999).

The FAA provides that an action must be stayed pending the outcome of the

I arbitration if any issue in the action is referable to arbitration: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action

until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.



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ITerminix Intl Co. v. Palmer Ranch Ltd., 432 F.3d 1327, 1332 (11th Cir. 2005)). Plaintiffs have argued in the underlying arbitration that they are not parties to

the Settlement Agreement, the claims alleged herein began after the date of the Settlement Agreement, and several of the Defendants are not parties to the

I Settlement Agreement. As an initial matter, the Settlement Agreement requires that I these very arguments be made solely and exclusively to the Arbitrator, not the Court, because the Arbitrator has exclusive jurisdiction to interpret the release and arbitration clause contained in the Settlement Agreement.

Accordingly, the Court should decline to reach Plaintiffs arguments about the scope of the Settlement Agreement and instead let Plaintiffs make these arguments to the Arbitrator.

B. Plaintiffs Cannot Be Permitted to Artfully Plead Around the Settlement Agreement

Plaintiffs arguments that the arbitration clause is not applicable to the claims in this case (which the Court should not reach for the reasons stated above), also have no merit because courts do not permit plaintiffs to artfully plead around arbitration clauses by naming non-party plaintiffs or affiliates and arbitrarily beginning their claims after the date of the agreement. See, e.g., RJ. Griffin & Co.

Iv. Beach Club II Homeowners Ass n, Inc., 384 F.3d 157, 164 (4th Cir. 2004) (stating that a party "may [not] use artful pleading to avoid arbitration"); Ivax Corp. v. B.

21 Braun ofAm., Inc., 286 F.3d 1309, 1318 (11th Cir. 2002) ("parties to an arbitration 22 agreement may not evade arbitration through artful pleading, such as by naming 23 individual agents of the party to the arbitration clause and suing them in their 24 individual capacity") (internal citations omitted); Smith v. Smith, 2014 WL 5462023, 25 at *7 (D.Or. Oct. 27, 2014) ("[d]espite plaintiffs attempt to artfully plead around 26 the arbitration clause, her claims against Brad Smith touch matters covered by the 27 Operating Agreement"); Jones v. Bayer Healthcare LLC, 2008 WL 3539619, *4..5 28 (N.D. Cal. 2008).

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In a transparent effort to avoid the arbitration clause and the release in the Settlement Agreement, Plaintiffs have arbitrarily selected January 1, 2015 as the supposed start date for all of their claims. Plaintiffs provide no explanation whatsoever - let alone factual allegations

- for why their claims suddenly sprang into existence on January 1, 2015. The reason is plain: Plaintiffs are attempting to avoid the arbitration clause by pleading facts that precede the Settlement Agreement (deliberately omitting any dates) but then arbitrarily starting their claims on January 1, 2015 after the date of the Settlement Agreement. Courts do not permit such tactics. See In re A2P SMS Antitrust Litig., 972 F. Supp. 2d 465, 495 (S.D.N.Y.

I 2013) ("Parties to arbitration agreements cannot be permitted to plead their way around arbitration requirements by asserting predicate facts that fall within the scope of the agreement, but limiting the temporal scope of their damages so as to avoid the

I agreements"). Plaintiffs have also attempted to plead their way around the Settlement

I Agreement by naming Golden Boy Promotions, LLC and Bernard Hopkins as the "Plaintiffs" in this action. But Plaintiff Golden Boy Promotions, LLC is co-owned

I by Oscar Dc La Hoya, who is a direct party to the Settlement Agreement. Mr. Hopkins is also an owner of Golden Boy Boxing Holdings, LLC, which is a direct party to the Settlement Agreement. (Reynolds Decl., 5.) Mr. De La Hoya cannot avoid the binding promises he made in the Settlement Agreement to Haymon by merely choosing one of his many affiliated entities and his co-owner, Mr. Hopkins, to file suit against the Haymon Defendants. See Chastain v. Union Sec. Life Ins.

23 11 Co., 502 F. Supp. 2d 1072, 1081 (C.D. Cal. 2007) ("Plaintiff cannot artfully plead 24 around an arbitration agreement simply by naming a non-signatory defendant who 25 acted in concert with the signatory"). Plaintiffs cannot deny that they are affiliated 26 with Mr. De La Hoya as well as the Golden Boy entities in the Settlement 27 I Agreement. 28 Furthermore, the express provisions of the Settlement Agreement prevent



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haymon motion to stay proceedings

Documents

defendants alan haymon

haymon sports

haymon boxing llc

alan haymon development

declarations of alan

haymon boxing management

defendants motion

action case