Free Reply to Response to Motion - District Court of Delaware - Delaware

` ° " i' `”` Case`1":O7-ev—OO178¥GI\/IS" Iljoeument 149 Fi|ed”O6/O9/2008 Page 1 of 4 '
IN THE UNITED STATES DISTRICT COURT i
FOR THE DISTRICT OF DELAWARE I
DEUTSCHER TENNIS BUND (GERMAN )
TENNIS FEDERATION), ROTHENBAUM )
SPORT GMBH, and QATAR TENNIS ) l A
FEDERATION, ) .
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Plaintiffs, ) A I
) C.A. N0. 07-178-GMS l
V- > t
) Public Version ·
ATP TOUR, INC., ETIENNE DE VILLIERS, ) _ E
CHARLES PASARELL, GRAHAM ) Fllcd JUHG 9, 2008 `
PEARCE, IACCO ELTINGH, PERRY ) 2
ROGERS, and IGGY IOVANOVIC, )
> 1 1
Defendants. ) p
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION IN LIMINE NO. 1 TO {
EXCLUDE EVIDENCE RELATING TO PLAINTIFFS’ OWNERSHIP OF g
TOURNAMENTS ON THE WOMEN’S TENNIS ASSOCIATION §"WTA") TOUR
Plaintiffs’ Motion seeks to exclude two types of evidence: (1) evidence of Plaintiffs’ i
participation in or acceptance of current or former WTA Tour rules or practices; and (2) 1
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evidence of Plaintiffs’ present or former ownership of tournaments on the WTA Tour. t
Defendants do not dispute that evidence in the former category has virtually no relevance
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to the issues in this litigation, and must be excluded. Indeed, Defendants’ only argument for
inclusion is that this evidence would show Plaintiffs’ involvement in unrelated actions by the
WTA that resemble, in sorne respects, the anticompetitive conduct Defendants are alleged to
have committed. (Resp. at 2.) Goveming law confirms that evidence of Plaintiffs’ unrelated "
conduct is not relevant where, as here, Defendants are alleged to have committed distinct and
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unique antitrust violations. See Perma Lyiz Mujlers, Inc. v. Int'! Parts Corp., 392 U.S. 134, 138
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(1968) (overruled on other grounds) ("A plaintiff in an antitrust suit [can]not be barred from [
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" Case 1 :07-cv—OO178-`GIVIS Document 149 Filed 06/O9/2008 Page 2 of 4 “
recovery by proof that he had engaged in an unrelated conspiracy to commit some other antitrust ·
violation."); see also Burlington Indust., Inc. v. Milliken & Co., 690 F.2d 380, 388 (4th Cir. }
1982) ("If [Plaintiffs’] misconduct other than direct participation in the antitrust conspiracy [at i T
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issue] is asserted as a defense, defendants can only be understood as raising the equitable defense
of unclean hands. It is well settled that unclean hands is no bar to antitrust recovery."). Thus, A
evidence related to Plaintiffs’ participation in or acceptance of current or former WTA Tour rules 1
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or practices, or any agreements thereto, should be excluded} E
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As to the latter category, Defendants argue that evidence of Plaintiffs’ present or former
ownership of WTA tournaments is relevant to the ATP Director Defendants’ business
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judgments. (Resp. at 2-3, {[11 2-3.) This is a faulty premise. Plaintiffs’ ownership of tournaments
on the WTA Tour has no relation whatsoever to whether interest in men’s professional tennis »
the subject of this litigation — is rising or falling in Germany. Moreover, even if Defendants plan
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to argue that the market for women’s tennis is related to the market for men’s tennis (a fact that
neither Plaintiffs’ nor Defendants’ liability expert has evaluated or endorsed, and a fact which
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Plaintiffs dispute), evidence of the popularity of women’s tennis in Germany can be entered into 1 l
evidence without prej udicing Plaintiffs by revealing their ownership.
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The remainder (and majority) of Defendants’ response argues that evidence related to the
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WTA generally, but unrelated to Plaintiffs’ involvement with the WTA, is relevant to this
litigation. (Resp. at 3, 4, 5.) These arguments do not address the subjects of Plaintiffs’ Motion,
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I Plaintiffs have no intention of introducing evidence at trial related to Plaintiffs’ participation '
in or acceptance of current or former WTA Tour rules or practices — as evidenced by this j il
Motion. Defendants’ reliance on Plaintiffs’ initial, clrajt exhibit list to argue to the contrary ii
is misplaced. (Resp. at 2, Ex. A.) Plaintiffs’ draft exhibitlist was submitted to Defendants
with "rights to amend and supplement reserved;" both Plaintiffs and Defendants have altered
their respective lists, to remove and add documents, since their initial submission. Moreover,
each of the items listed in Ex. A to Defendants’ Response has been removed from the list, A
eliminating Defendants’ concerns. it
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‘‘‘‘ 1 ‘ 1 “ 1 ‘ ceee 1 507-ev-oo1`7e-GMS 0 Do96umenlti149 I Filed oe/oe/2008 1 Page e of 4 ’
and should be disregarded. Rather, they highlight the prejudice Plaintiffs will suffer if evidence l
regarding the WTA’s rules or practices, or Plaintiffs’ involvement therewith, is admitted at trial. §
Put simply, Defendants will argue that the ATP’s anticompetitive conduct should be excused 1
because the WTA Tour’s unrelated conduct has not been subject to a legal challenge. (Resp. at 2 1
(arguing that evidence related to WTA will show that the ATP’s actions were "reasonable, pro- 1
competitive, and entirely appropriate").) In response, Plaintiffs will be forced to argue that the _
WTA, who is not a defendant in this litigation, may have acted unreasonably and may have U
violated antitrust laws. Not only will this be impossible, because Plaintiffs have neither sued the
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WTA Tour nor conducted discovery related to the legality of the WTA Tour’s conduct, but it j
will confuse the jury into thinking that the legality of the WTA’s conduct, rather than the ATP’s j
conduct, is at issue in this case. This is precisely the type of evidence that the United States
Supreme Court warned would distract a jury from properly evaluating the legality of defendants’
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conduct. Perma Ly'e Mu]j‘lers, Inc., 392 U.S. at 138. j
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For all of the foregoing reasons, and for each of them, Plaintiffs respectfully request that §
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the Court grant their Motion In Limine.
YOUNG CONAWAY STARGATT
Dated: June 2, 2008 & TAYLOR, LLP
Of Counsel: /s/ Karen E. Keller
Robert D. Mac Gill j
Hamish S. Cohen C. Barr Flinn (N o, 4092) j
Jennifer Westerhaus Adams Karen E. Keller (No. 4489) g
Matthew B. Barr 7 James L. Higgins (No. 5021)
BARNES & THORNBURG LLP The Brandywine Building I E
11 South Meridian Street 1000 West Street, 17th Floor " l l
Indianapolis, Indiana 46204 Wilmington, DE 19801 1
(317) 236-1313 (302) 571-6600
D Emi G1 Gmvclyn [email protected]
300 Ottawa Avenue N.W., Suite 500 A PZ _ _
Grand Rapids, Michigan 49503 tmmeysfar mntyfg
(616) 742 3930 j
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Case 1 :07-cv—OO178-GIVIS Document 149 Filed 06/O9/2008 Page 4 of 4
CERTIFICATE OF SERVICE " 1
I, Karen E. Keller, hereby certify that on June 9, 2008, I caused to be electronically tiled S
a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF,
which will send notification that such tiling is available for viewing and downloading to the
following counsel of record:
Lawrence C. Ashby, Esquire
Philip Trainer, Jr., Esquire
Carolyn Hake, Esquire
Ashby & Geddes .
500 Delaware Avenue
P.O. Box 1 15 0
Wilmington, DE 19899
1
I further certify that on June 9, 2008, I caused a copy of the foregoing document to be
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served by e-mail and hand delivery on the above—listed counsel of record and on the following in
the manner indicated:
`BY E-MAIL
Bradley I. Ruskin, Esquire
Jennifer R. Scullion, Esquire ,
PROSKAUER ROSE g 1
1585 Broadway . 1
New York, NY 10036 q I
YOUNG CONAWAY STARGATT & TAYLOR, LLP
/s/ Karen E. Keller
C. Barr Flinn (No. 4092) ,
Karen E. Keller (No. 4489) ig
James L. Higgins (No. 5021)
. The Brandywine Building 1
1000 West Street, 17th Floor
Wilmington, Delaware 19801 ,
(302) 571-6600 1
[email protected]
Attorneys for Deutscher Tennis Bund (the German Tennis
Federation), Rothenbaum Sports GMBH and Qatar Tennis
Federation
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