Tuesday, November 08, 2016

WWE Lawsuit (McCullough / Bagwell)

Right now, WWE has two active lawsuits:
  1. Russ McCullough et al v. World Wrestling Entertainment Inc
  2. Bagwell v. World Wrestling Entertainment, Inc
(1) The McCullough case is the consolidated case for all of the Traumatic Brain Injury (TBI) & Chronic Traumatic Encephalopathy (CTE) cases which have been filed in the past few years in other states Billy Jack Haynes (OR), Family of Matt Bourne (TX), Russ McCullough/Ryan Sakoda/Luther Reigns (CA), Family of Nelson Frazier Jr (TN) and Vito Lograsso/Evan Singleton (NJ). Recently, a new suit was filed with dozens of plaintiffs which was consolidated with the McCullough case. The new plaintiffs were JOSEPH M. LAURINAITIS, a.k.a. Road Warrior Animal; JIMMY “SUPERFLY” SNUKA, by and through his guardian, Carole Snuka; PAUL ORDNDORFF, a.k.a. Mr. Wonderful; SALAVADOR GUERRERO IV, a.k.a. Chavo Guerrero, Jr.; CHAVO GUERRERO, SR., a.k.a. Chavo Classic; BRYAN EMMETT CLARK, JR., a.k.a. Adam Bomb; ANTHONY NORRIS, a.k.a. Ahmed Johnson; JAMES HARRIS, a.k.a. Kamala; DAVE HEBNER, EARL HEBNER; CHRIS PALLIES, a.k.a. King Kong Bundy; KEN PATERA; TERRY MICHAEL BRUNK, a.k.a. Sabu; BARRY DARSOW, a.k.a. Smash; BILL EADIE a.k.a. Ax; JOHN NORD, a.k.a. The Bezerker; JONATHAN HUGGER a.k.a. Johnny The Bull; JAMES BRUNZELL, a.k.a. Jumpin’ Jim; SUSAN GREEN, a.k.a. Sue Green; ANGELO MOSCA, a.k.a. King Kong Mosca; JAMES MANLEY, a.k.a. Jim Powers; MICHAEL “MIKE” ENOS; BRUCE “BUTCH” REED, a.k.a. The Natural; CARLENE B. MOORE-BEGNAUD, a.k.a. Jazz; SYLVAIN GRENIER; OMAR MIJARES a.k.a. Omar Atlas; DON LEO HEATON, a.k.a. Don Leo Jonathan; TROY MARTIN, a.k.a. Shane Douglas; MARC COPANI, a.k.a. Muhammad Hassan; MARK CANTERBURY, a.k.a. Henry Godwin; VICTORIA OTIS, a.k.a. Princess Victoria; JUDY HARDEE a.k.a. Judy Martin; MARK JINDRAK; BERNARD KNIGHTON as Personal Representative of the Brian Knighton, a.k.a. Axl Rotten, Estate; MARTY JANNETTY; JON HEIDENREICH. TERRY SZOPINSKI, a.k.a. The Warlord; SIONE HAVEA VAILAHI, a.k.a. The Barbarian; LARRY OLIVER, a.k.a. The Crippler; BOBBI BILLIARD; TIMOTHY SMITH, a.k.a. Rex King; TRACY SMOTHERS, a.k.a. Freddie Joe Floyd; MICHAEL R HALAC, a.k.a. Mantaur; RICK JONES, a.k.a. Black Bart; KEN JOHNSON, a.k.a. Slick; GEORGE GRAY, a.k.a. One Man Gang; FERRIN JESSE BARR, a.k.a. JJ Funk; LOU MARCONI; ROD PRICE; DONALD DRIGGERS; RODNEY BEGNAUD, a.k.a. Rodney Mack; RONALD SCOTT HEARD, a.k.a. Outlaw Ron; BORIS ZHUKOV. In addition, WWE preemptively sued Blackjack Mulligan, Koko B. Ware, the Dynamite Kid and Ivan Koloff when it became clear that they were preparing to join the lawsuit.

As you can imagine, sorting through each individual claim and individual's legal standing is turgid affair. WWE assembled a chart looking at Plaintiff / Dates Performed for WWE Based on Complaint / Tort Claims / Negligence Based Claims / Contract Based Claims / RICO Claim / FMLA Claim and Complaint Filed for a "Statue of Limitations Chart" which was filed in October.

Besides trying to exclude standing for most of these plaintiffs, WWE's strategy has been to attack the language used in the original language (by showing that the WWE lawsuit was essentially a retread of the NFL Concussion Injury Litigation) as well as go after sanctions against Plaintiffs' counsel Konstantine Kyros, Brenden Leydon, James Boumil, Anothony Norris, Erica Mirabella and R. Christopher Gilreath. Just last week, Connecticut Judge Vanessa Bryant signed an order to refer the sanctions motions to be reviewed by newly appointed US Magistrate Judge Robert A. Richardson. Also, WWE is contesting that Plantiff's can sue for violations of IRS tax code or OSHA safety code because those claims should be brought by the government and not private entities.

As things have progressed, it appears that the cut-off for whether someone with significant standing in this case (at least in regards to discovery) has been centered around performers who worked for WWE after 2005.

In January 2016, Judge Bryan issued this order:
ORDER PARTIALLY LIFTING STAY OF DISCOVERY: The parties are Ordered to proceed with discovery as to the claims of Singleton and LoGrasso only until further order of the Court. Discovery is to be bifurcated, with an initial liability phase extending no later than June 1, 2016. During this initial liability phase, discovery should be limited to facts relevant to the question of (1) whether WWE had or should have had knowledge of and owed a duty to disclose to those plaintiffs the risks of long -term degenerative neurological conditions resulting from concussions or mild traumatic brain injuries to wrestlers who performed for WWE in the year 2005 or later, (2) whether and when WWE may have breached that duty, and (3) whether such a breach, if any, continued after Singleton and LoGrasso ceased performing for WWE. Dispositive Motions, if any, on the issue of liability are to be filed by August 1, 2016. A decision on the merits of the pending Motions to Dismiss is in progress, and the parties should expect that the scope of discovery may be adjusted based on the outcome of that decision. The parties are further Ordered to read and comply with Chambers Practices regarding discovery disputes during the pendency of this action.
In May 2016, Judge Bryant issued another order:
ORDER granting in part and denying in part Plaintiffs' Motions to Compel Responses to Plaintiffs' First Requests for Production. This case is not about concussion prevention. The Court has already found that Defendant owed no negligence-based duty to prevent Plaintiffs from sustaining head trauma in their voluntary and compensated wrestling activities. Discovery of information and production of documents which merely reflect a desire to limit concussions and prevent injury to WWE talent - or specific incidences of head trauma occurring during WWE activities are not relevant, nor would such discovery be proportional.
Rather, the sole remaining claim concerns an allegation of fraudulent non-disclosure of knowledge of a link between wrestling activity and permanent degenerative neurological conditions. To the extent there are documents within the categories identified by Plaintiffs Motion to Compel including documents related to the use of helmets, the elimination of wrestling moves, the implementation of the wellness program or the hiring of specific personnel and the adoption of specific protocol, or the incidences of concussions among WWE talent which reflect a specific knowledge of OR an appreciable risk of a link between wrestling activity and permanent degenerative neurological conditions, then WWE is under an obligation to disclose such documents. However, to the extent information within the identified categories merely reflects a general desire to limit or prevent head injury to WWE talent, or the occurrence of head injuries among WWE talent, such information is irrelevant to the claim at hand and is not discoverable.
As the Court indicated in its recent telephonic conference with the parties, Plaintiffs have not presented any factual predicate whatsoever entitling them to discover documents or information dated prior to the year 2005 and absent such a factual predicate Plaintiffs motion to compel is denied on that issue. Lastly, Plaintiffs demand for WWE to disclose Plaintiffs own medical files is denied in as much as it seeks production of information within Plaintiffs control and access and permissibly gathered by WWE at Defendants own expense.
The Court assumes that both parties have gathered, using appropriate litigation holds, and examined, using appropriate diligence, the information at issue in preparing to determine the outcome of this matter on the merits and will not be reviewing such documents for the first time. As such, the Court will permit the parties to supplement their discovery responses no later than fourteen days after the discovery deadline to provide the information they have each been compelled to disclose.
The two sides have been quibbling extensively over depositions around who and when and how many times someone can be deposed. There has been extensive depositions of Vito LoGrasso, Evan Singleton, Stephanie McMahon, Vince McMahon, Dr. Joseph Maroon, Dr. Mark Robert Lovell, former WWE Performance Center trainer Bill Demott, Dr. George Adams and Paul "Triple H" Levesque. (Note that Concussion Legacy Foundation's Chris Nowinski has not been deposed. This has been a point of contention and legal wrangling.) With the exception of LoGrasso and Singleton, these depositions were filed under seal. However, on October 20, Judge Bryant did rule that "Upon review of the documents sought to be sealed, the Court finds that redaction is the least restrictive means of balancing the public's First Amendment right to open courts and the Defendant's business interests. Accordingly, the Defendant is hereby ordered to file exhibits redacted to omit proprietary information." It's possible that the redacted depositions will provide slightly more insight beyond the sparse sentence or two which has been quoted in filings.

(2) The Marcus "Buff" Bagwell WWE Network royalties lawsuit began in August 2016. WWE has been unsuccessful in consolidating this case with the McCullough/LoGrasso/Singleton/Laurinaitis supercase. Recently, Scott Levy (Raven) has joined the lawsuit as a plaintiff. The most concise summary of everything in this case is the "Form 26(f) Report" from a November 7 Parties' Planning Meeting. It lays out the jurisdiction, brief description of the case, statement of undisputed facts (which are few), discovery, plaintiff's claims and defendants' defenses and claims.

Essentially, Bagwell claims that his WCW merchandising contract and his WWE contract entitles him “video cassettes, videodiscs, CD ROM, or other technology, including technology not yet created.” He believes that revenue from the WWE Network should qualify. WWE counters that streaming content is not a "direct sale", does not transfer title or ownership and "calculation of royalty payments cannot logically apply in the context of a subscription service like the WWE Network". There's other objections about which entities & contracts were in place, how WWE is reporting traditional royalty payments on physical media like DVD sales, why WWE is allocating royalties to certain performers, and whether WWE is fulfilling the "audit" clauses that were in the original contracts regarding royalties. The Plantiffs are seeking a class action lawsuit which would include contracted performers who haven't signed "Nostalgia" or "Legends" contract but signed contracts with WWE prior to 2004 (especially in 1993 and 2001-2003). This may take some time to sort everything out.

-Chris Harrington

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