Complaint Filed Against Pacquiao for Concealment of Shoulder Injury

Plaintiff JOHN ASSALIAN (“Plaintiff”), by and through his attorneys,
on behalf of himself and all others similarly situated, brings this Class
Action Complaint against Defendants TOP RANK, INC. (“Top Rank”), a Nevada
corporation, MAYWEATHER PROMOTIONS LLC (“Mayweather Promotions”), a limited
liability company, EMMANUEL D. PACQUIAO, and FLOYD MAYWEATHER, JR., (collectively
“Defendants”) and alleges, based upon personal knowledge as to himself and his
own acts, and as to all other matters upon information and belief, as follows:

1. I.
    NATURE OF THE ACTION
2. This is a proposed class action on behalf of a
   nationwide class and a California subclass of all similarly situated persons who
   purchased a pay-per-view broadcast of the Floyd Mayweather-Manny Pacquaio fight
   (the “Match”) which took place in Las Vegas, Nevada on May 2, 2015.
3. Defendant Top Rank, “the country’s premiere boxing
   promotions company” and promoter for Emmanuel
   Dapidran Pacquiao aka “Manny” Pacquiao (“Pacquiao”),
   and Defendant Mayweather Promotions, established in 2007 by 11-time World Champion and currently undefeated
   boxing icon, Floyd “Money” Mayweather (“Mayweather”), promoted the Match as the
   “Fight of the Century.”
4. After the Match aired on pay-per-view, the media reported
   that Pacquiao could face disciplinary action from Nevada boxing officials for
   failing to disclose a shoulder injury before his fight with Mayweather.  According to Pacquiao, Mayweather knew about
   Pacquiao’s injury before the Match.
5. II.
   JURISDICTION
   AND VENUE
6. This Court has jurisdiction over the subject matter of
   this action pursuant to 28 U.S.C. § 1332(d)(2) and the Class Action
   Fairness Act, in that Plaintiff and certain of the defendants in this action
   are citizens of different states and the amount in controversy exceeds
   $5,000,000.00 exclusive of interest and costs.
7. This court has personal jurisdiction over Defendants Pacquiao
   and Mayweather because they have conducted and do business within this
   District, and Defendants Top Rank and Mayweather Promotions because they are
   headquartered in this District, and all Defendants have sufficient contacts
   with Nevada or otherwise intentionally avail themselves of the laws and markets
   of Nevada, so as to sustain this Court’s jurisdiction over Defendants.
8. Venue is proper in this judicial district pursuant to
   28 U.S.C. § 1391, because Defendants maintain headquarters in this District
   and/or a substantial part of the events or omissions giving rise to Plaintiff’s
   claims occurred in this judicial district.
   In addition, Defendants do business and/or transact business in this
   judicial district, and therefore, are subject to personal jurisdiction in this
   judicial district and reside here for venue purposes.
9. III.
   PARTIES
10. At all times relevant to this matter, Plaintiff JOHN
    ASSALIAN (“Plaintiff”) was a citizen of California and resided and continues to
    reside in Alameda, California.  On May 2,
    2015, Plaintiff purchased the Match
    on pay-per-view for $99.95.  Had he known
    that Pacquiao was injured, he would not have purchased the pay-per-view Match.
11. Defendant Top Rank, a corporation organized and
    existing under the laws of Nevada, has its principal place of business at 748
    Pilot Road, Las Vegas, Nevada.
12. Defendant Mayweather Promotions, a limited liability
    company organized and existing under the laws of Nevada, has its principal
    place of business at 4616 West Sahara Avenue, Las Vegas, Nevada.
13. Defendant Emmanuel D. Pacquiao is an individual who is
    a foreign citizen doing business in Nevada, and whose residence is General
    Santos City, South Cotabato, Phillipines.
14. Defendant Floyd Mayweather, Jr. is an individual and is
    a resident of Nevada.
15. IV.
    FACTUAL ALLEGATIONS
16. On May 2, 2015, a fight was scheduled between Pacquaio
    and Mayweather at the MGM Grand in Las Vegas, Nevada.  Hyped as the “Fight of the Century,” the event
    was a much sought after ticket, and drew hordes of celebrities and boxing
    aficionados.
17. The Match was heavily promoted by Defendants Top Rank
    and Mayweather Promotions.  For example:

 

HBO & Showtime Pay-Per-View will air the
biggest fight in the world – one that’s expected to break every record in
boxing history – featuring the undefeated Floyd Mayweather &
eight-time, eight-division champ Manny Pacquiao.  The fight to unify the welterweight division
titles, and perhaps more importantly, vie for the right to call themselves the
best fighter of a generation is finally happening.[1]

1. According to an April 3, 2105 New York Times
   article, the “long-anticipated title fight” between Floyd Mayweather Jr. and Manny Pacquiao on May 2 “will
   cost boxing fans a record price on pay per view: $89.95 to watch in standard
   definition and, in some cases, $99.95 for the high definition version[.]”[2]
   The Match was expected to break all
   boxing pay-per-view records even though the cost of the fight exceeded the
   previous peak — $64.95 for standard definition and $74.95 for high definition —
   for Mayweather’s 2013 fight against Canelo Alvarez.
2. Top Rank chairman Bob Arum, Pacquiao’s promoter, told
   ESPN.com that “[t]he live gate for the joint Showtime/HBO pay-per-view fight on
   May 2 at the MGM Grand Garden Arena in Las Vegas will generate a staggering $74
   million from the sale of a little more than 15,000 tickets[.]”[3]
3. Both Pacquaio and Mayweather received massive paychecks
   – reported to be approximately $100 million each – for the Match.  Upon information and belief, Top Rank and
   Mayweather also profited immensely from the Match.
4. The Match broadcast on pay-per-view was delayed about 30 minutes because of high
   pay-per-view demand causing problems for cable and satellite systems.
5. Mayweather prevailed in a unanimous decision.  After the Match, it was revealed that Pacquaio
   was suffering from a very significant shoulder injury, making him unable to
   fight to his full ability.  On May 4,
   2015, Los Angeles orthopedic surgeon Dr. Neal ElAttrache told ESPN that
   Pacquaio has a “significant tear” in his rotator cuff that will require surgery
   and require him to be away from the ring for 9-12 months.
6. When the Nevada State Athletic Commission administered
   the pre-fight examination on Pacquaio on the Friday afternoon before the Match,
   Pacquaio was given a questionnaire.  Among
   the questions was: Have you had any injury to your shoulders, elbows, or hands
   that needed evaluation or examination?  Under
   penalty of perjury, Pacquaio replied no.
7. To the contrary, one of Pacquaio’s sparring partners
   has allegedly reported that Pacquaio was in fact injured a few weeks prior to
   the fight, and that the injury was so severe that Pacquaio could not continue
   to spar and both boxers were sent home.
8. As a result of the injury, Pacquaio allegedly requested
   an injection of Toradol (a non-steroidal prescription medication) and the
   numbing drug lidocaine before the Match.
   That request was rejected by the Nevada State Athletic Commission.
9. Pacquaio and Top Rank have allegedly admitted that
   Pacquaio was not 100% healthy on the night of the fight, and Pacquaio later
   told the L.A. Times that he re- injured his shoulder in the fourth round of the
   fight.
10. Pacquaio could face disciplinary action, including fine
    or suspension, as a result of his misrepresentation on the questionnaire.
11. As one New York Times columnist wrote, fans “all thought they were getting the Fight of
    the Century.”

Two
fighters who, if not in their prime, were at least in peak condition for the
fight of their lives.  What they got
instead was a one-armed Pacquiao chasing Mayweather around the ring for 12
rounds.  The Filipino who normally is a
punching machine landed only 18 right jabs and didn’t even throw as many
punches as the defensive-minded Mayweather.

His shoulder had been injured in training.  Injured so badly that Pacquiao will undergo
surgery this week for a rotator cuff tear.[4]

1. Upon
   information and belief, Mayweather Promotions was aware of Pacquiao’s injured
   shoulder before the Match.  After the fight,
   the Business Insider reported[5]:

Top Rank CEO Bob Arum said the injury — which the
Pacquiao promoter said was a torn rotator cuff — happened about a month ago and
Pacquiao was denied a numbing injection by the Nevada State Athletic Commission
before the fight.

The day after the fight, Pacquiao revealed
something else in a news conference with Filipino media: Mayweather found out
about the injury before the fight through a leak.

“You saw he was pulling my hand.  He was doing that because he knew,” he told
Rappler.com.  “He was pulling it.  He was holding me, then he was targeting this.  I’m sure he found out.  Somebody leaked it to him.  They knew.”

1. V.
   CLASS ACTION
   ALLEGATIONS
2. Plaintiff brings this lawsuit on behalf of himself and
   the proposed Class members under Rule 23(b)(2) and (3) of the Federal Rules of
   Civil Procedure.

The proposed nationwide Class consists of:

All persons throughout the United States who purchased a
pay-per-view broadcast of the Mayweather-Pacquaio fight which took place in Las
Vegas, Nevada on May 2, 2015 (the “National Class”).

            The
proposed California subclass consists of:

All persons residing in California who purchased a
pay-per-view broadcast of the Mayweather-Pacquaio fight which took place in Las
Vegas, Nevada on May 2, 2015 (the “California Subclass”).

1. Numerosity.  The
   class consists of tens of thousands of consumers.  Therefore, the members of the Class are so
   numerous that their individual joinder is impracticable.  The precise number of Class members is
   unknown to Plaintiff.
2. Existence and Predominance of Common Questions of Law
   and Fact.  Common questions of law and
   fact exist as to all members of the Class and predominate over any questions
   affecting only individual Class members.
   These common legal and factual questions include, but are not limited
   to:
3. Whether Defendants withheld the information that
   Pacquiao had been seriously injured prior to the Match;
4. Whether
   Defendants’ actions violated the NRS 598; NRS 41.600; NRS 598A and California
   Business & Professions Code §§ 17200 et
   seq.;
5. Whether
   Defendants were unjustly enriched by their acts and omissions at the expense of
   the Plaintiff and the Class;
6. Whether Plaintiff
   and members of the Class sustained damage and loss thereby;
7. The scope,
   extent and measure of damages and equitable relief that should be awarded; and
8. Whether
   Defendants’ acts and omission entitle Plaintiff and the Class to treble
   damages, attorneys’ fees, prejudgment interest and costs of suit.
9. Typicality.  Plaintiff’s
   claims are typical of the claims of the members of the Class and Plaintiff has
   the same claims as those of the other Class members.
10. Adequacy of Representation.  Plaintiff will fairly and adequately protect
    the interests of the members of the Class.
    Plaintiff has retained counsel highly experienced in complex consumer
    class action litigation, and Plaintiff intends to prosecute this action
    vigorously.  Plaintiff has no adverse or
    antagonistic interests to those of the Class.
11. Superiority.  A
    class action is superior to all other available means for the fair and
    efficient adjudication of this controversy.
    The damages or other financial detriment suffered by individual Class
    members is small compared to the burden and expense that would be entailed by
    individual litigation of their claims against the Defendants.  It would thus be virtually impossible for the
    members of the Class, on an individual basis, to obtain effective redress for
    the wrongs done to them.  Furthermore,
    even if Class members could afford such individualized litigation, the court
    system could not.  Individualized
    litigation would create the danger of inconsistent or contradictory judgments
    arising from the same set of facts.  Individualized
    litigation would also increase the delay and expense to all parties and the
    court system from the issues raised by this action.  By contrast, a class action provides the
    benefits of adjudication of these issues in a single proceeding, economies of
    scale, and comprehensive supervision by a single court, and presents no unusual
    management difficulties under the circumstances here.

COUNT I

Statutory Consumer Fraud NRS 41.600

On Behalf of the National Class

1. Plaintiff realleges and incorporates by reference the
   allegations contained in the paragraphs above as though fully set forth herein.
2. Pursuant to
   NRS §§ 41.600(2)(e), 598.0915, and 598.0923 the Defendants knowingly engaged in
   predatory, wrongful, fraudulent and deceptive trade practices in violation of
   the Nevada Deceptive Trade Practices Act by engaging in certain prohibited
   conduct, including but not limited to:
3. Engaging in a deceptive trade practice as
   defined in NRS 598.0915 to 598.0925, inclusive.
   [See NRS 41.600(2)(e)]
4. Failing to
   disclose a material fact in connection with the sale of… goods. [NRS
   598.0923(2)]
5. Violating a
   state or federal statute or regulation relating to the sale … of goods or
   services [NRS 598.0923(3)]
6. Making any
   other false representation in a transaction. [NRS 598.0915(15)
7. As a direct and proximate cause of the Defendants’
   deceptive trade practices/consumer fraud, as herein alleged, Plaintiff and the
   Class have been damaged.  Defendants in
   making the aforementioned material misrepresentations and/or concealing
   material facts from Plaintiff and the Class concerning the condition of
   Pacquiao, have acted willfully, intentionally, maliciously and fraudulently,
   with intent to deceive and defraud Plaintiff and the Class with great
   recklessness and carelessness in total disregard of the consequences of their intentional actions upon Plaintiff and the Class, thereby
   entitling the Plaintiff and the Class to exemplary or punitive damages.

COUNT II

Unjust Enrichment

On Behalf of the National Class

1. Plaintiff realleges and incorporates by reference the
   allegations contained in the paragraphs above as though fully set forth herein.
2. As a result of the unlawful conduct described herein,
   Defendants have been unjustly enriched at the expense of Plaintiff and the
   other members of the Class.
3. Specifically, Defendants’ unfair and unlawful actions,
   as described herein, have enabled Defendants to receive money and other
   benefits in violation of the law at the expense of Plaintiff and the other
   members of the Class.
4. Defendants’ receipt and retention of this financial
   benefit is unfair and improper under the circumstances.
5. As such, Defendants should be required to disgorge the
   money they retained as a result of their unjust enrichment.

COUNT III

UNFAIR COMPETITION
LAW

(Violations of Cal. Bus. & Prof. Code § 17200 et. seq.)

On Behalf of the California Subclass

1. Plaintiff realleges and incorporates by reference the
   allegations contained in the paragraphs above as though fully set forth herein.
2. Defendants have engaged in unfair competition within
   the meaning of California Business & Professions Code Section 17200 et seq. because Defendants’ conduct is
   misleading and unfair as herein alleged.
3. Defendants’ business practices are misleading because
   they were likely to deceive consumers into believing that by promoting and
   disseminating information about the Match, that Pacquiao was healthy leading up
   to and entering the Match, and by making false and misleading representations
   while omitting accurate statements as alleged above.  If Defendants disclosed or provided accurate
   information that Pacquiao suffered an injury or any information related to the
   nature and extent of that injury, Plaintiff and members of the Class would not
   have purchased the “Fight of the Century,” via pay-per-view, distributed by
   various and numerous cable providers throughout the country.
4. Defendants’ business practices, and each of them, are
   unfair because they offend established public policy and/or are immoral,
   unethical, oppressive, unscrupulous and/or substantially injurious to
   consumers, which harm greatly outweighs any benefit associated with the
   business practice, in that consumers were led to believe that the Match they were
   paying for via pay-per-view had qualities that it did not have.  Defendants’
   promotional efforts contained false and misleading statements and representations,
   for the purpose of increasing and maximizing pay-per-view purchases of the Match,
   including to Plaintiff and members of the Class.
5. Plaintiff has standing to pursue this claim because he
   has been injured by virtue of suffering a loss of money and/or property as a
   result of the wrongful conduct alleged herein.
   Plaintiff would not have paid for pay-per-view to watch the Match had he
   known the truth.
6. Plaintiff and the Class are entitled to relief,
   including full restitution and/or restitutionary disgorgement, to the greatest
   extent permitted by law, which may have been obtained by Defendants as a result
   of such business acts or practices, and enjoining Defendants to cease and
   desist from engaging in the practices described herein.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment against the
Defendants, on his behalf and that of similarly
situated class members as follows:

A.        Certifying
the Class as requested herein;

B.        Awarding
Plaintiff and the proposed Class members damages;

C.        Awarding
restitution and disgorgement of Defendants’ revenues to Plaintiff and the
proposed Class members;

D.        Awarding
Plaintiff and the Class punitive damages;

E.         Awarding
attorneys’ fees and costs; and

F.         Providing
such further relief as may be just and proper.

/ / /

/ / /

/ / /

/ / /

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JURY DEMAND

Plaintiff demands a trial by jury on all
issues so triable.

 

Dated:  May 6, 2015	ALBRIGHT, STODDARD, WARNICK & ALBRIGHTBy: _____________________________________G. Mark Albright  G. Mark Albright William H. Stoddard, Jr. 801 S. Rancho Drive, Suite D-4 Las Vegas, NV  89106 Telephone:  (702) 384-7111 Facsimile:  (702) 384-0605 Email: gma@albrightstoddard.com bstoddard@albrightstoddard.com
	KAPLAN FOX & KILSHEIMER LLPLaurence D. King (applying for admission pro hac vice)Linda M. Fong (applying for admission pro hac vice)Mario M. Choi  (applying for admission pro hac vice)350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone:  415-772-4700 Facsimile:   415-772-4707 Email:  lking@kaplanfox.com lfong@kaplanfox.com mchoi@kaplanfox.com (Pro hac vice pending)
	Frederic S. Fox (applying for admission pro hac vice)KAPLAN FOX & KILSHEIMER LLP850 Third AvenueNew York, NY  10022Telephone: (212) 687-1980 Facsimile:   (212) 687-7714 Email:  ffox@kaplanfox.com (Pro hac vice pending)   Attorneys for Plaintiff JOHN ASSALIAN

 

 

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