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MLW filed a motion today, seeking to strike WWE's response to the Amended lawsuit filed on 8/15.
The motion, filed before the United States District Court, Northern Division of California, San Jose, states:
"This action arises from WWE’s willful anticompetitive scheme to acquire and maintain its monopoly power in the United States market for the sale or licensing of media rights for professional wrestling programs—a scheme that has included egregious and predatory conduct that has harmed competition and impaired the business of its competitors, including MLW.
MLW filed its First Amended Complaint on March 6, 2023, ECF No. 64 (“FAC”), and WWE filed its Answer on August 14, 2023, ECF No. 98. In its Answer, WWE asserts thirteen Affirmative Defenses that are largely unsupported and intended to distract from WWE’s anticompetitive conduct in this case.
WWE’s Affirmative Defenses are devoid of facts, and merely reference legal doctrines without providing MLW with “sufficient particularity to give Plaintiff fair notice of the basis for the asserted defense.” Several “do not actually constitute affirmative defenses.” Rather, the Answer “reads more like a law school competition to devise the greatest number of affirmative defenses, without regard to fact or law, than a thoughtful and considered response to a straightforward lawsuit.” Savage v. Citibank N.A., 2015 WL 4880858, at *4 (N.D. Cal. Aug. 14, 2015) (striking various affirmative defenses).
Additionally, WWE improperly attempts to reserve the right to assert additional affirmative defenses at some undetermined later time. (Answer at 24.) The Court should reject WWE’s blunderbuss approach to pleading and strike all thirteen of WWE’s Affirmative Defenses, strike the “Reservation of Rights” section, and deny leave to amend the “Reservation of Rights” section and the first, second, fifth, sixth, eighth, and twelfth Affirmative Defenses."
MLW's response to WWE's potential defenses of the lawsuit:
WWE's First Defense: The First Amended Lawsuit (FAC) fails to state a claim upon which relief may be granted.
MLW Response: "The Court should strike this Affirmative Defense because failure to state a claim “is not an actual defense since it simply embodies the contention that Plaintiff will be unable to prove the elements of the claims contained in the Complaint.”
"Moreover, given that the Court has already denied Defendant’s motion to dismiss for failure to state a claim, “the Court’s ruling on the sufficiency of the allegations of the [FAC] stands as the law of the case” and precludes WWE’s attempt to raise this argument again as an affirmative defense."
WWE's Second Defense: MLW’s claims are barred because MLW lacks antitrust injury or injury in fact.
MLW Response: "The Court should strike this Affirmative Defense because it merely asserts a legal conclusion without sufficient particularity. Additionally, lack of injury-in-fact and antitrust injury are not affirmative defenses."
WWE's Third Defense: MLW’s equitable claims are barred, in whole or in part, by the doctrines of unclean hands and in pari delicto.
MLW's Response: "The Court should strike this Affirmative Defense because “simply stating that a claim fails due to plaintiff’s ‘unclean hands’ is not sufficient to notify the plaintiff what behavior has allegedly given them ‘unclean hands.’”WWE has “allege[d] no supporting facts whatsoever explaining how the [unclean hands] doctrine[] appl[ies]” to MLW.
WWE's Fourth Defense: MLW’s equitable claims are barred, in whole or in part, based on the doctrines of estoppel, laches, and waiver, as MLW’s claims are based, in part, on actions and events spanning decades.
MLW's Response: "The Court should strike this Affirmative Defense because it too “lack[s] any facts to support [WWE’s] conclusory allegations. As to estoppel, WWE fails to “set forth either the elements of the doctrine or the facts supporting its application.” As to laches, WWE fails to “articulate how [MLW] engaged in unreasonable delay that prejudiced” WWE. And as to waiver, WWE “fails to point to any facts that would suggest [MLW] ever intended to relinquish a known right or even what the right was that [MLW] supposedly waived.” Moreover, there is no plausible basis for asserting that estoppel, laches, and waiver are relevant to the claims in this case, and WWE has made no attempt to articulate if and how these defenses apply. MLW was not relaunched until 2017, and much of the conduct directed at MLW occurred in 2021. MLW did not delay in seeking redress, but rather timely filed suit in January 2022, after it learned of WWE’s unlawful conduct. Accordingly, this Affirmative Defense should be stricken."
WWE's Fifth Defense: MLW’s claims are barred, in whole or in part, because it does not have standing to raise those claims.
MLW's response: "The Court should strike this Affirmative Defense because it simply parrots a legal conclusion without the requisite factual support to provide notice to the Plaintiff. Additionally, “lack of standing is not an affirmative defense under federal law” because “a plaintiff must plead and ultimately prove standing.” Vizcarra, 2011 WL 4501318, at *2 (citation omitted) (striking lack of standing affirmative defense)"
WWE's Sixth Defense: MLW’s claims are barred, in whole or in part, because WWE’s actions were authorized or permitted under state and/or federal law.
MLW's Response: "The Court should strike this Affirmative Defense because it is a “bare statement[] reciting mere legal conclusions,” not “pleaded with sufficient particularity to give [MLW] fair notice of the basis for the asserted defense.” Additionally, “[c]ompliance with laws” “is simply a denial of liability,” and therefore is not an actual affirmative defense."
WWE's Seventh Defense: If and to the extent that MLW has been damaged, which WWE denies, MLW, by the exercise of reasonable diligence, could have mitigated its damages but did not and is therefore barred from recovery. Alternatively, any damages sustained by MLW, which WWE denies, must be reduced by the amount that such damages would have been reduced had MLW exercised reasonable diligence in mitigating its damages.
MLW's Response: "The Court should strike this Affirmative Defense because WWE does not “state what damages could have been mitigated and how [MLW] failed to do so.”
WWE's Eighth Defense: MLW’s claims are barred, in whole or in part, because, to the extent that MLW suffered any injury or incurred any damages as alleged in the FAC, which WWE denies, WWE’s alleged conduct was not the actual or proximate cause of any injury or damage to MLW.
MLW's Response: "The Court should strike this Affirmative Defense because it simply parrots a legal conclusion without the requisite factual support to provide notice to the Plaintiff. Additionally, this Affirmative Defense is not actually an affirmative defense because it merely advances that MLW has “not met [its] burden of proof” regarding the causation elements of its claims."
WWE's Ninth Defense: MLW’s claims are barred, in whole or in part, because, to the extent that MLW suffered any injury or incurred any damages as alleged in the FAC, which WWE denies, any such injury or damage was caused and brought about by the acts, conduct, or omissions of individuals or entities other than WWE, and, as such, any recovery herein should be precluded or diminished in proportion to the amount of fault attributable to such other individuals or entities.
MLW's Response: "The Court should strike this Affirmative Defense because WWE “does not identify any third parties or their acts” which allegedly and alternatively caused MLW’s damages."
WWE's Tenth Defense: MLW’s claims are barred, in whole or in part, because, to the extent MLW suffered any injury or incurred any damages as alleged in the FAC, which WWE denies, any such injury or damage was caused and brought about by intervening or superseding events, factors, occurrences, conditions, or acts of others, including forces in the marketplace, and not by the alleged wrongful conduct on the part of WWE.
MLW's Response: "The Court should strike this Affirmative Defense because WWE “fail[s] to allege any actual intervening or supervening events on which [WWE] base[s] [its] affirmative defense.” Vague inclusion of “forces in the marketplace,” see Answer at 24, does not rise to the level of particularity sufficient to put MLW on notice of the basis of this Affirmative Defense
WWE's Eleventh Defense: MLW’s equitable claims are barred, in whole or in part, because any recovery would result in unjust enrichment to MLW.
MLW's Response: "The Court should strike this Affirmative Defense because it is “devoid of any material facts,” “simply refer[s] to a legal doctrine,” and is “just a single sentence.”
WWE's Twelfth Defense: MLW’s claims for equitable relief are barred because MLW has an adequate remedy at law.
MLW's Response: "The Court should strike this Affirmative Defense because it is a “bare statement[] reciting mere legal conclusions,” and not “pleaded with sufficient particularity to give [MLW] fair notice of the basis for the asserted defense.” Additionally, courts have repeatedly held that “[adequate remedy at law] is not an affirmative defense because it is simply a thinly masked reiteration that defendant denies liability.”
Fourteenth Defense: MLW’s claims are barred, in whole or in part, because WWE had legitimate business and/or economic justifications for the conduct at issue.
MLW's Response: "The Court should strike this Affirmative Defense because WWE has not included facts of any kind to sustain the business justification defense."
MLW also argued that WWE's attempts to potential amend their defenses should be denied as well, arguing, "Although this Court generally grants leave to amend when striking affirmative defenses, it should not do so when amendment would be futile, such as when a defendant “has simply pled a defense as an affirmative defense.” Here, amendment for WWE’s improper Affirmative Defenses—defenses that are not actually affirmative defenses— would be futile, since “no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense. Accordingly, for the foregoing reasons, the Court should strike at least six of WWE’s Affirmative Defenses without leave to amend, including the first (failure to state a claim), second (lack of antitrust injury), fifth (lack of standing), sixth (actions authorized by law), eighth (actual or proximate cause), and twelfth (adequate remedy at law). (striking failure to state a claim and standing affirmative defenses with,4, 6 (striking adequate remedy at law affirmative defense without leave to amend); Jansen, 2017 WL 607610, at *3 (striking actual or proximate cause affirmative defenses without leave to amend); at *2 (striking no injury-in-fact and no antitrust injury affirmative defenses with prejudice); Krulee, 2014 WL 4954836, at *2 (striking compliance with laws affirmative defense with prejudice). The Court should also strike the “Reservation of Rights” section without leave to amend. (striking reservation of rights affirmative defense with prejudice)"
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