New York's Reply Brief in Support of its Motion to Dismiss

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JON JONES, GINA CARANO, FRANKIE EDGAR, MATT HAMILL, BRIAN STANN, ZUFFA, LLC d/b/a ULTIMATE FIGHTING CHAMPIONSHIP, DON LILLY, SHANNON MILLER, DANIELLE HOBEIKA, BETH HURRLE, DONNA HURRLE, STEVE KARDIAN, JOSEPH LOZITO, ERIK OWINGS, CHRIS REITZ AND JENNIFER SANTIAGO,

Plaintiffs,

-against-

ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York,

Defendant.

ECF Case

11 Civ. 8215 (KMW) (GWG)

DEFENDANT SCHNEIDERMAN'S REPLY MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO DISMISS THE FIRST AMENDED COMPLAINT ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant Schneiderman 120 Broadway - 24th Floor New York, New York 10271 (212) 416-8559 JOHN M. SCHWARTZ Special Litigation Counsel of Counsel

Case 1:11-cv-08215-KMW Document 41 Filed 12/14/12 Page 1 of 21

TABLE OF CONTENTS Page POINT I - § 8905-a DOES NOT VIOLATE THE FIRST AMENDMENT ............................... 1 A. MMA is Not Expressive Conduct Protected by the First Amendment................. 1 B. The State Had and Still Has an Important Interest in the Ban of Combative Sport ................................................................................................... 5 POINT II - § 8905-a(1) IS NOT UNCONSTITUTIONALLY VAGUE ..................................... 8 POINT III - § 8905-A(3) IS NOT UNCONSTITUTIONALLY VAGUE OR OVERBROAD .................................................................................................. 10 POINT IV - PLAINTIFFS' REPEATED CLAIMS OF EQUAL PROTECTION AND DUE PROCESS VIOLATIONS ARE BARRED BY THE LAW OF THE CASE DOCTRINE................................ 11 POINT V - § 8905-a DOES NOT RESTRICT INTERSTATE COMMERCE.......................... 14 POINT V - THE CLAIM UNDER THE 2001 ALCOHOLIC BEVERAGES LAW IS NOT PROPERLY BROUGHT AGAINST THE ATTORNEY GENERAL AND IN ANY EVENT DOES NOT VIOLATE THE FIRST AMENDMENT OR THE EQUAL PROTECTION CLAUSE ................... 15 CONCLUSION............................................................................................................................. 15

i


TABLE OF AUTHORITIES

Cases Page(s)

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)...........................................................................................................2, 3, 7

Church of the American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004).......................................................................................................2

Cunney v. Bd of Trustees of Grandview, 660 F.3d 612 (2d Cir. 2011).......................................................................................................8

Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006).......................................................................................................8

Fezzani v. Bear Stearns & Co., Inc, 99 Civ. 0793, 2005 WL 500377 (S.D.N.Y. March 2, 2005)....................................................12

Five Borough Bicycle Club v. City of New York, 483 F. Supp.2d 351 (S.D.N.Y. 2007), aff'd 308 Fed. App'x 511 (2d Cir. 2009) .......................3

Grayned v. City of Rockford, 408 U.S. 104 (1972)...................................................................................................................8

Hobbs v. County of Westchester, 397 F.3d 133 (2d Cir 2005)................................................................................................5, 6, 7

Holder v. Humanitarian Law Project, ___U.S. ___, 130 S.Ct 2705 (2010).........................................................................................10

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995)...............................................................................................................1, 2

Kriegler v. City of New York, 821 F. Supp.2d 651 (S.D.N.Y. 2011).................................................................................12, 13

Middlesex Cnty Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1 (1981).....................................................................................................................10

Miller v. South Bend, 904 F.2d 1081,1092 (7th Cir. 1990), rev'd sub. nom. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)..................................................................................................................2, 3, 5

Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co., 510 F. Supp. 81 (D. Conn. 1981)...............................................................................................4

ii


Puello v. Bureau of Citizenship & Immigration Services, 511 F.3d 324 (2d Cir. 2007).....................................................................................................10

Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47 (2006).....................................................................................................................2

Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989)...................................................................................................................7

Southern Pac. Co. v. Arizona, 325 U.S. 761 (1945)...........................................................................................................14, 15

Spence v. Washington, 418 U.S. 405 (1974)...................................................................................................................1

Texas v. Johnson, 491 U.S. 397 (1989)...................................................................................................................1

Thornhill v. Alabama, 310 U.S. 88 (1940)...................................................................................................................11

United States Satellite Broadcasting Co. v. Lynch, 41 F. Supp.2d 1113 (E.D. Cal. 1999).........................................................................................4

United States v Cox, 458 Fed App'x 79 (2d Cir. 2012) .............................................................................................12

United States v. O'Brien, 391 U.S. 367 (1968)...........................................................................................................2, 5, 8

United States v. Tenzer, 213 F.3d 34 (2d Cir 2000)........................................................................................................13

United States v. Stevens, ___ U.S. ___, 130 S. Ct. 1577 (2010)......................................................................................11

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)...................................................................................................................8

Ward v. Rock Against Racism, 491 U.S. 781 (1989)...................................................................................................................6

Zalewska v. County of Sullivan, 316 F.3d 314 (2d Cir. 2003).......................................................................................................2

United States Constitution

First Amendment ................................................................................................................... passim

iii


iv

Federal Rules

Fed. R. Civ. Proc. Rules 12(b)(1) ............................................................................................................................1 Rules 12(b)(6) ......................................................................................................................1, 12

State Statutes

NY Alco. Bev. Cont. Law § 106(6-c).................................................................................................................................15

NY Unconsolidated Laws § 8905-a ........................................................................................................................... passim § 8905-a(1)....................................................................................................................... 6-8, 10 § 8905-a(2).................................................................................................................................8 § 8905-a(3)...............................................................................................................................10


DEFENDANT SCHNEIDERMAN'S REPLY MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO DISMISS THE FIRST AMENDED COMPLAINT Defendant, Eric T. Schneiderman, in his official capacity as Attorney General of the State

of New York ("the AG"), submits this reply memorandum in support of his motion, pursuant to

Fed. R. Civ. Proc. Rules 12(b)(1) and 12(b)(6), to dismiss the First Amended Complaint in this

action. More specifically, it is submitted in response to Plaintiffs' Opposition to Defendant's

Motion to Dismiss the Amended Complaint.1

POINT I

§ 8905-a DOES NOT VIOLATE THE FIRST AMENDMENT

A. MMA is Not Expressive Conduct Protected by the First Amendment

The central theme of plaintiffs' First Amendment argument is that "[i]t is the audience

that is critical," Pl. Opp. at 10, i.e., that MMA is expressive conduct protected by the First

Amendment because it is entertainment intended for an audience. Pl. Opp. at 9, 10,17. To be

sure, any "expressive conduct" - indeed, any communication at all - requires at least one other

person to hear or observe it, but that does not mean that the presence of such an "audience" can

alone turn unprotected conduct into expression protected by the First Amendment. The

determining factor is not who is watching or how many, but rather the particularity and

comprehensibility of the intended message. Texas v. Johnson, 491 U.S. 397, 404 (1989);

Spence v. Washington, 418 U.S. 405, 410-11 (1974). Notwithstanding Justice Souter's caution

in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995),

against requiring a "narrow, succinctly articulable message" for First Amendment protection that

would exclude many modern paintings, musical compositions or verse, id. at 569, cited in Pl. 1 The First Amended Complaint (Docket #34) is referred to herein as "Am. Compl." Defendant Schneiderman's Memorandum of Law in Support of His Motion to Dismiss the First Amended Complaint (Docket #37) is referred to as "AG Mem." Plaintiffs' Opposition to that motion (Docket #39) is referred to as "Pl. Opp."


Opp. at 16, the Johnson/Spence test requiring a "particularized message" and "a great

likelihood" that the message will be understood by those viewing it - remains the law. Church of

the American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 n. 6 (2d Cir. 2004);

accord, Zalewska v. County of Sullivan, 316 F.3d 314, 319 (2d Cir. 2003).

The Supreme Court has repeatedly held that even where "the person engaging in the

conduct intends thereby to express an idea,'" his or her conduct is not necessarily protected

speech. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 65-66 (2006),

quoting United States v. O'Brien, 391 U.S. 367, 376 (1968); see also, Zalewska, 316 F.3d at

319-21 (county employee's insistence on wearing skirt to work rather than pants, although

expressive of "cultural values," not protected by First Amendment, since "ordinary viewer would

glean no particularized message"). A fortiori, a fight in a bar, a street, a playground or an

octagonal cage does not come under the protection of the First Amendment simply because

people are watching, even if part of the participants' intent (in addition to the hope of prevailing)

may be to entertain, impress and/or frighten the "audience."

In support of their "it's all about the audience" theory, plaintiffs cite, in Pl. Opp. at 10,

Hurley, 515 U.S. at 568 (parades are a form of expression to bystanders, as opposed to "just

motion"); Justice Souter's concurrence in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581 (1991)

(dance as performance to an audience has expressive content); and also Judge Posner's

concurrence in Miller v. South Bend, 904 F.2d 1081,1092 (7th Cir. 1990), rev'd sub. nom.

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (unlike kicking a wastebasket in private,

expression relevant to freedom of speech is to another person).2 They fail to disclose, however,

that the judgment in which Judge Posner concurred in Miller was reversed in Barnes, in which

2 Plaintiffs cite Judge Posner's concurring opinion in Miller for varying purposes throughout their Opposition. See Pl. Opp. at 9, 10, 11, 17.

2


the Supreme Court's plurality recognized that nude barroom dancing is "expressive conduct

within the outer perimeters of the First Amendment," although "only marginally so," 501 U.S. at

565-66, but concluded that the statute was justified, despite its "incidental limitations on some

expressive activity," id. at 569-71. As Judge Posner recognized in his thoughtful, although

reversed, concurrence, "not everything in [our] enormous range of communicative activity is

within the scope of the First Amendment." Miller, 904 F.2d at 1092. As an example, he noted

that bullfighting, an entertainment that is "more expressive, more artistic, culturally richer than

the most popular American sports," is not protected, although just as "expressive" as ballet,

because of the torture, killing and risk of injury or death involved ("the Constitution does not

place freedom of expression above all other values," id. at 1097).

Competitive sports have generally been held not to be protected by the First Amendment.

AG Mem. at 7-8. Disputing these authorities, plaintiffs contend that MMA athletes convey "all

sorts" of messages to their audience (including good sportsmanship, courage, determination and

victory against all odds); that MMA promoters should be compared to promoters of music

festivals, dance performances and circuses; and that the popularity of sports requires protection.

Pl. Opp. at 12-13. The weaknesses of these arguments have been previously discussed in AG

Mem. at 8-10. Plaintiffs also now claim, however, that courts have found such sports to be

protected. Id. at 13-14. Their cited authorities, discussed below, do not support this contention.

In Five Borough Bicycle Club v. City of New York, 483 F. Supp.2d 351 (S.D.N.Y.

2007), aff'd 308 Fed. App'x 511 (2d Cir. 2009), cited in Pl. Opp. at 13, Judge Kaplan denied a

preliminary injunction against municipal regulation to the plaintiff advocates of large group

bicycle rides through New York City. He observed that such rides can sometimes combine

speech and non-speech elements but concluded that he "need not decide" whether the plaintiffs'

3


or other rides "amount to expressive conduct," and that "regardless of the expressiveness of these

rides, the Parade Regulations do not violate the First Amendment." Id. at 368. The Second

Circuit affirmed, without reference to the issue of whether the plaintiffs' rides were protected

expressive conduct.

In United States Satellite Broadcasting Co. v. Lynch, 41 F. Supp.2d 1113 (E.D. Cal.

1999), a satellite television broadcaster challenged a tax on certain pay-per-view sporting

contests. Id. at 1116. Although "not convinced" that the First Amendment did not protect a live

boxing match held and televised for live and remote viewers, the district court concluded that it

did "not matter . . . whether the First Amendment protects or even applies to boxing," since at

issue was not the live fights but the clearly protected televising of "moving images and sound

recordings" of the contests. Id. at 1121.

Finally, plaintiffs assert that the Connecticut district court found figure skating to be

protected by the First Amendment in Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins.

Co., 510 F. Supp. 81 (D. Conn. 1981). Pl. Opp. at 13-14. As noted in AG Mem. at 10, the court

in Post Newsweek rejected the application of First Amendment protection in denying a

preliminary injunction, noting that as an "athletic enterprise," the competition was only "on the

periphery of protected speech (for purposes of balancing conflicting interests), as opposed, for

example to political speech, which is at the core of first amendment protection." Id. at 86.

Thus, each of the cases cited by plaintiffs to support its contention that competitive sports

have been accorded First Amendment protection do no such thing. The courts in Five Borough

Bicycle and Lynch declined to decide the issue, ruling on other grounds, and the court in Post

Newsweek held that figure skating, for all its grace and artistry, was not entitled to protection.

Plaintiffs state that they are seeking a ruling only that MMA is expressive, not all sports.

4


Pl. Opp. at 12 fn. 3. Expressiveness is not the end of the inquiry, however. As Judge Posner

explained in his concurrence on which plaintiffs rely so heavily, "[b]ullfighting is forbidden not

because it is not expressive, but because in American society its harmful consequences are

thought to outweigh its expressive value." Miller, 904 F.2d at 1097. This Court has already held

that the New York legislature had, and still has, a rational basis for coming to the same

conclusion about MMA. 8/13/12 Order at 9. 3 This alleged "sport" does not qualify for First

Amendment protection.

B. The State Had and Still Has an Important Interest in the Ban of Combative Sport. As discussed in AG Mem. at 10-11, even if MMA fighters were consciously

communicating a particularized and comprehensible message worthy of protection, the State still

has "a sufficiently important governmental interest in regulating the nonspeech element [that]

can justify incidental limitations on First Amendment freedoms." O'Brien, 391 U.S. at 376.

Plaintiffs continue their preoccupation with the audience by contending that the O'Brien standard

does not apply to § 8905-a because, they claim, "[t]he Ban regulates MMA only when it is

engaged in for the purpose of entertaining an audience." Pl. Opp. at 19, 20. Therefore, plaintiffs

argue, "[t]his is not an incidental effect case," id. at 19, but rather is subject to the "strictest form

of scrutiny" under the authority of Hobbs v. County of Westchester, 397 F.3d 133 (2d Cir 2005).

Pl. Opp. at 18, 20.

In Hobbs, a street performer previously convicted of crimes involving sexual abuse of

minors challenged a county executive order that prohibited those convicted of such crimes from

performing in public areas in Rye Playland park. The Second Circuit affirmed the denial of the

challenge, finding that the order was content-neutral, imposed a reasonable limitation on the

3 This Court's Opinion & Order dated August 13, 2012 (Docket #31)is referred to herein as "8/13/12 Order."

5


manner of expression without reference to content, and was narrowly tailored to address the

county's compelling governmental interest. Id. at 154. As Judge Kearse explained, a limitation

of expressive activity that "'serves purposes unrelated to the content of expression is deemed

neutral, even if it has incidental effect on some speakers or messages but not others.'" Id. at 150,

quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

The ban of combative sport in § 8905-a(1) restricts the physical combat included in "any

professional match or exhibition," without reference to or concern with the content of any

"message" that the fighters or promoters might intend. Plaintiffs apparently argue that the term

"professional" is only aimed at matches meant to entertain an audience, and that matches held in

gyms (presumably amateur) are "for non-expressive purposes," Pl. Opp. at 19, but even amateur

matches in gyms can have audiences. The distinguishing factor in the term "professional" is

money, not the audience.

Plaintiffs also contend that in enacting § 8905-a "the Legislature's repeatedly expressed

aim was to suppress MMA's supposedly "violent message." Pl. Opp. at 18. It was certainly not

the only aim, however. As this Court has already found, the statute's legislative history shows

that its supporters "voiced two primary concerns: (1) professional MMA posed a threat to the

health and safety of its participants, and (2) professional MMA was detrimental to public

morality and had a negative influence on New York youth." 8/13/12 Order at 9. This Court has

held both these objectives to have been rational bases for the statute. Id. at 10, 13. Since at least

one of them, the concern for health and safety, is "justified without reference to the content" of

any alleged speech or expression, the ban is content-neutral. Hobbs, 505 U.S. at 149.

In its conclusion that the second aim of the Legislature - "the defense of public morals" -

was also a rational basis for upholding the law, this Court cited Barnes, in which the Supreme

6


Court held that a legislative "purpose of protecting societal order and morality" furthers a

substantial governmental interest unrelated to the suppression of free expression for First

Amendment purposes. Barnes, 501 U.S. at 567-68. The Second Circuit has gone even further,

holding that "the government has 'a compelling interest in protecting the physical and

psychological well-being of minors.'" Hobbs, 397 F.3d at 150, quoting Sable Communications of

California, Inc. v. FCC, 492 U.S. 115, 126 (1989). The complaints by legislative proponents of

§ 8905-a about MMA's violent and uncivilized "message" were not directed to the content of

any of the purported "messages" that plaintiffs here claim MMA participants intend, or to any

"content" at all, but rather to the "public morality" factor identified by the Supreme Court in

Barnes, by the Second Circuit in Hobbs and by this Court, 8/13/12 Order at 13.

The ban of combative sport in § 8905-a is thus content-neutral and is not subject to "strict

scrutiny." Hobbs, 397 F.3d at 149. Although such a restriction must be "narrowly tailored to

serve the governmental interest, it need not be the least restrictive or least intrusive means of

doing so." Id. Although plaintiffs contend that a "complete" ban is greater than is essential to

further the State's interests, Pl. Opp. at 20, the statute itself reflects the Legislature's efforts to

tailor it narrowly, by limiting the ban to "professional" matches and exhibitions (thus excluding

the amateur contests that might be held in gyms or back yards), and by excluding martial arts

sanctioned by then known and responsible organizations. See § 8905-a(1). As for plaintiffs'

contention that "MMA contests before live audiences are now commonplace throughout New

York without any state regulation," Pl. Opp. at 20 (apparently suggesting, somewhat obscurely,

that the statute does not accomplish its goals), the failure of the Legislature to eradicate all

related evils cannot justify striking a statute. See Hobbs, 397 F.3d at 154 (plaintiff need not be

banned completely from parks to achieve "at least some of the desired effect"); 8/13/12 Order at

7


15 (no requirement that "all evils of the same genus be eradicated or none at all"). § 8905-a is

sufficiently justified under the test of O'Brien, 391 U.S. at 377.

POINT II

§ 8905-a(1) IS NOT UNCONSTITUTIONALLY VAGUE

In its contention that § 8905-a(1) and (2) - the ban of combative sports - are

unconstitutionally vague, plaintiffs accuse the AG of focusing too much on the "adequate notice"

requirement of the vagueness inquiry and not enough on the "adequate standards for

enforcement" prong, which they argue can be determined by assessing the level of confusion

among those enforcing the law. Pl. Opp. at 24-25. As the Second Circuit said in Cunney v. Bd of

Trustees of Grandview, 660 F.3d 612 (2d Cir. 2011), cited in Pl. Opp. at 23, 24, in reviewing a

statute for vagueness, a court is "relegated . . . to the words of the ordinance itself, to the

interpretations the court below has given to analogous statutes, and, perhaps to some degree, to

the interpretation of the statute given by those charged with enforcing it." Id. at 621, quoting

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (emphasis added). Thus, the opinions

of enforcement personnel is the source of last resort only if the text of the statute does not

provide the answer. In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489 (1982), cited in Pl. Opp. at 24, the Supreme Court, despite the confused testimony of its

draftsman and enforcement officials, upheld an ordinance because its "language. . . is sufficiently

clear that the speculative danger of arbitrary enforcement does not render the ordinance void for

vagueness." Id. at 503.

Moreover, "'where a[n ordinance] provides insufficient general guidance, an as applied

vagueness challenge may nonetheless fail if the [ordinance's] meaning has a clear core.'"

Cunney, 660 F.3d at 623, quoting Farrell v. Burke, 449 F.3d 470, 493 (2d Cir. 2006). Since the

8


text of § 8905-a(1) is clear on its face on the two issues plaintiffs repeatedly raise - whether the

definition of "combative sport" includes (1) amateur matches and exhibitions and (2) matches or

exhibitions held under the auspices of an exempt organization, see AG Mem. at 17-19, - there is

no reason to canvass enforcement officials, other Government officials, MMA participants or

internet commentators as to what it means.

To support their charge of vagueness, plaintiffs cite alleged statements by various State

Athletic Commission personnel going back to the enactment of the statute in 1997, id. at 26-27,

as well as opinions expressed by people who have no responsibility for enforcing this ban, such

as Mayor Giuliani, id. at 29, and Assemblyman Reilly, Am. Complaint ¶ 173. In addition, they

persist in their gross distortion of arguments made in the AG's reply brief in the prior motions

and their wholly concocted fable that those arguments were an earth-shaking "change of

position" (it is not clear by whom). Id. at 5, 26. They even repeatedly assert that somehow, the

AG's reply brief arguments in March, 2012, influenced the Athletic Commission to change its

position on at least the "amateur" question.. See Pl. Opp. at 5 ("the SAC changed course,

adopting the AG's view. . . ") and 26 ("[t]he SAC pivoted yet again, allowing all amateur

combative sport, after the AG took the position . . . ."), whereas their own amended complaint

alleges that the State Department General Counsel took that very position in writing on behalf of

the Commission in March, 2011, eight months before this action was commenced and almost a

year before the AG's Reply brief. Am. Complaint ¶170. The fallacy of plaintiffs' characterization

of the arguments in the AG's reply brief is explained in AG Mem. at 16-17, 20; plaintiffs'

Memorandum of Law in opposition to the prior motions (Docket # 23) clearly shows that the

AG's Reply Brief was merely responding to plaintiffs' categorical statements that (1) "today

highly regulated professional MMA is banned, while amateur MMA occurs under dangerous

9


conditions without regulation," id. at 25, and (2) "[t]oday, it appears that numerous martial arts

combat sports, including those plainly not on the exempted list, can avoid the Ban and become

sanctioned in NY under the auspices of an exempt organization," id. at 26.

The text of the definition of combative sport in § 8905-a(1) provides a "clear core" to the

statute that makes a survey of enforcement personnel or the public unnecessary. No plaintiff has

shown that it is unconstitutionally vague as applied. Although plaintiffs argue that Holder v.

Humanitarian Law Project, ___U.S. ___, 130 S.Ct 2705 (2010) could not have disallowed facial

vagueness challenges because that case was not a facial challenge, Pl. Opp. at 33, the Supreme

Court did exactly that, because it noted that the Ninth Circuit had nevertheless treated it like a

facial challenge by deciding how the statute applied to hypothetical circumstances. Id. at 2719.

POINT III

§ 8905-a(3) IS NOT UNCONSTITUTIONALLY VAGUE OR OVERBROAD Plaintiffs have still not chosen between their inconsistent assertions (a) that the "advances

or profits from" provision of § 8905-a(3) is unconstitutionally vague, relying on the legislative

debate that preceded it and behavior in New York that "potentially violates" it, Am. Complaint

¶¶ 198-203; Pl. Opp. at 32, and (b) that the same provision is so clearly overbroad that it violates

the First Amendment, relying on a literal reading of the text, Am. Complaint ¶¶ 362-371; Pl.

Opp. at 20-22. Both contentions are incorrect.

As pointed out in AG Mem. at 23, to the extent that the text and structure of the statute do

not provide a precise meaning for the term "advances or profits from," the next place to look is

the law's legislative history. Middlesex Cnty Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453

U.S. 1, 13 (1981); Puello v. Bureau of Citizenship & Immigration Services, 511 F.3d 324, 327

(2d Cir. 2007). The legislative history of § 8905-a provides such guidance, satisfactory to resolve

10


both the vagueness and overbreadth claims in the Amended Complaint. See AG Mem. 23-26.

Nor is United States v. Stevens, ___ U.S. ___, 130 S. Ct. 1577 (2010), cited in Pl. Opp. at 21-22,

to the contrary. In Stevens, although the legislative history had focused primarily on the

interstate market for "crush videos," 130 S. Ct. at 1583, the language of the statute was

considerably broader; the Supreme Court found that the text of the prohibition contained "little

ambiguity" when read according to its ordinary meaning, id. at 1588, and that "no adequate

reading" of the law's list of exceptions could limit its coverage, id. at 1590. The Court's

determination of unconstitutionality was based on the clarity of the text and, although it rejected

the Government's assurance of a more restrictive application in the future, id. at 1591, it had no

reason to resort to the legislative history and did not do so. Similarly, in Thornhill v. Alabama,

310 U.S. 88, 96 (1940), cited in Pl. Opp. at 20, the Court adhered to the "face of the statute" in

reversing a conviction on First Amendment grounds, without any reference to legislative history.

By contrast, plaintiffs here assert that the "advances or profits from" language is ambiguous. Am.

Complaint ¶ 383; Pl. Opp. at 32. They cannot then refuse to look at its legislative history, which

provides guidance for its interpretation, including the Legislature's intention to avoid restricting

protected speech. See AG Mem. at 23-25.

POINT IV

PLAINTIFFS' REPEATED CLAIMS OF EQUAL PROTECTION AND DUE PROCESS VIOLATIONS ARE BARRED BY THE LAW OF THE CASE DOCTRINE After having required defense counsel and the Court to devote considerable time and

effort over the course of more than seven months to the disposition of the first motions and the

dismissal of two of their claims, plaintiffs now ask for a "do-over" by repeating and repackaging

the same claims that the Court dismissed. Such a wasteful imposition on the Court and counsel is

11


what the doctrine of "law of the case" is intended to prevent.

The thrust of plaintiffs' argument that law of the case should not be applied is that the

doctrine "applies merely to legal issues," quoting from Fezzani v. Bear Stearns & Co., Inc, 99

Civ. 0793, 2005 WL 500377 at *2 (S.D.N.Y. March 2, 2005), whereas the issue on the present

motion is "the sufficiency of new factual allegations in the amended complaint," citing Kriegler

v. City of New York, 821 F. Supp.2d 651, 658 (S.D.N.Y. 2011). Pl. Opp. at 35. Courts in this

Circuit, of course, including the Court of Appeals, have applied the law of the case doctrine to

factual determinations. See, e.g., United States v Cox, 458 Fed App'x 79, 80 (2d Cir. 2012) (law

of the case doctrine permitted district court to adhere to its "prior determination as to disputed

facts in the absence of cogent and compelling reasons to revisit them"). More importantly,

however, this Court's 8/13/12 Order was necessarily a decision "of legal issues": it was made on

a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), which required the Court to accept all

well-pleaded facts as true and to draw all inferences in plaintiffs' favor. 8/13/12 Order at 5. The

issue then was whether as a matter of law the allegations stated a claim; the Court held they did

not.

Moreover, the so-called "new factual allegations" that plaintiffs contend take them out of

the law of the case doctrine do no such thing. As explained in AG Mem. at 28-31 and in Point II,

supra, the arguments in the AG's reply brief on the prior motions that plaintiffs contend were

new changes of position and have changed MMA in New York were simply reiterations or

questions prompted by categorical statements by plaintiffs of these very positions as part of their

argument on the prior motions. See Plaintiffs' Memorandum of Law in opposition to the prior

motions (Docket # 23) at 25 ("today . . . amateur MMA occurs under dangerous conditions

without regulation") and 26 ("[t]oday, it appears that numerous martial arts combat sports,

12


including those plainly not on the exempted list, can avoid the Ban and become sanctioned in

NY under the auspices of an exempt organization").

Plaintiffs' other purported "new factual allegations" in the amended complaint are little

more than repetitions of some of the major themes of plaintiffs' original complaint, although

alleged at greater length, in some cases with more detail and in others with minor changes. For

example, they say they have alleged that MMA "events are now proliferating throughout the

State, " are "everywhere in New York," including in gyms and amateur matches, are widely

viewed and promoted, including by children's action figures and toys, and are not regulated by

the State Pl. Opp. at 36, but compare the original Complaint (Docket #1) ¶¶ 285, 103, 58-59.

They now allege that there is widespread professional MMA without regulation for safety, Pl.

Opp. at 37, but compare the original Complaint ¶ 110, which makes essentially the same

allegation with respect to "underground" MMA in New York.

The law of the case doctrine cannot be evaded simply by repeating the same allegations

at greater length or repackaging them with wording changes or additional examples of the same

course of conduct that was before the Court in the earlier proceeding. Plaintiffs' alleged theories

of liability remain the same, including their assertion that the law's "enforcement and/or

exceptions undercut whatever rationale might have supported its enactment," Pl. Opp. at 37; Cf.

Plaintiffs' Memorandum of Law in opposition to the prior motions (Docket # 23) at 32. Kriegler

in therefore inapposite, since law of the case was not applied there because the new allegations

of fact in effect changed the legal theory of plaintiffs' case. 821 F. Supp. 2d at 658. More to the

point is United States v. Tenzer, 213 F.3d 34 (2d Cir. 2000) in which the Second Circuit applied

law of the case because it found that the fact to which the defendant's "new" allegations pointed

"was not material to [the court's] prior holding." Id. at 40. In the 8/13/12 Order, this Court

13


determined that notwithstanding the allegations of fact in the Complaint, as a matter of law §

8905-a had at the time of its enactment and still has a rational basis. Plaintiffs are again making

the same arguments and have added only cumulative allegations to support them. The so-called

"new" factual allegations would not change the outcome. The Fourth and Fifth Counts are

barred by the law of the case doctrine.4

POINT V

§ 8905-a DOES NOT RESTRICT INTERSTATE COMMERCE Plaintiffs contend that § 8905-a in effect discriminates against out-of-state businesses in

favor of New York businesses, a peculiar position in a case where most of the plaintiffs are New

Yorkers. Apparently, it is plaintiff Zuffa, Inc., which claims to be an out-of-state entity, who

contends it is being injured in favor of local New York business people like at least five of the

other plaintiffs, apparently because they are willing to adjust their businesses to New York law,

while Zuffa is not. See AG Mem. at 32-34. But Zuffa cannot convert its unwillingness to adapt

to New York legal requirements into a burden on interstate commerce. It could, if it wished, do

business in New York, as long as it played by the same rules as the local businesses. If it prefers

not to do so, it may continue to do business in other states and countries without interference.

Although the legislative history of the law makes it clear that it is not intended to reach

out-of-state events or the promotion or advertising in New York of such events, see Declaration

of John M. Schwartz dated October 26, 2012, Ex. F, plaintiffs still speculate that some out-of-

state businesses might be discouraged from entering the New York market. But a law can only

violate the Constitution in what it does, not what someone incorrectly thinks it does. In any

4 In the event the Court determines that these Counts should be considered, defendant Schneiderman refers and incorporates herein the arguments made in his Memorandum of Law and Reply Memorandum of Law on the Prior Motions (Docket ## 16 and 26).

14


event, states have the power to make laws governing matters of local concern that in some

measure affect interstate commerce. Southern Pac. Co. v. Arizona, 325 U.S. 761, 767 (1945).

The propriety of such local regulation in the field of safety has long been recognized. Id. at 795

(Douglas, J., dissenting). This Court has held that the risks to fighter health and safety provide a

rational basis for § 8905-a. Such safety concerns also justify some incidental effects on interstate

commerce.

POINT VI

THE CLAIM UNDER THE 2001 ALCOHOLIC BEVERAGES LAW IS NOT PROPERLY BROUGHT AGAINST THE ATTORNEY GENERAL AND IN ANY EVENT DOES NOT VIOLATE THE FIRST AMENDMENT OR THE EQUAL PROTECTION CLAUSE Plaintiffs argue that the AG is a proper defendant in this action, even though he is not

expressly assigned enforcement duties in NY Alco. Bev. Cont. Law § 106(6-c), "as long as they

exist." Pl. Opp. at 40. As noted plaintiffs' AG Mem at 35, however, the only penalty specified

for violation of the statute is suspension or loss of the violator's liquor license, a function the AG

cannot perform. As for plaintiffs' concern that Madison Square Garden should not be prevented

from serving liquor at events permitted by the ban of combative sport, Madison Square Garden,

and not plaintiffs here, would be the proper parties to assert that claim. The Seventh Count

should be dismissed.

CONCLUSION The Amended Complaint should be dismissed in its entirety and the NY Unconsolidated

Laws § 8905-a and NY Alco. Bev. Cont. Law § 106(6-c) should declared constitutional.

15


16

Dated: New York, New York December 14, 2012 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant Schneiderman By: __S/_______________________ JOHN M. SCHWARTZ Special Litigation Counsel 120 Broadway - 24th Floor New York, New York 10271 (212) 416-8559


Documents

New York's Reply Brief in Support of its Motion to Dismiss