Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Pa.: Mixed martial arts matchmaker may proceed with refusal to deal claim, (Aug 24, 2015)

By Greg Hammond, J.D.

A matchmaker of mixed martial arts (MMA) events could continue with claims that competing promoters and two casinos refused to deal in violation of Section 1of the Sherman Act. The federal district court in Reading, Pennsylvania, dismissed Xtreme Caged Combat as a named plaintiff, however, finding that it is not a legal entity but a fictitious name by which Kerwin conducts business (Kerwin v. Cage Fury Fighting Championships, August 20, 2015, Stengel, L.).

Ryan Kerwin, a matchmaker of MMA events, filed suit against promoters Xtreme Fight Events and Cage Fury Fighting Championships, as well as casinos Chester Downs & Marina LLC and Valley Forge Casino Resort, alleging that the defendants conspired to monopolize and restrict trade in the MMA events market in the Philadelphia Region. The court previously dismissed the monopolization claim and ordered Xtreme Caged Combat to find legal representation. The defendants moved for summary judgment, arguing that Kerwin and Xtreme Caged Combat lack standing.

The court granted the motion for summary judgment with regard to Xtreme Caged Combat, finding that Kerwin failed to produce any evidence that the purported company has any legal capacity to sue. Kerwin’s argument that the court is bound by its prior rulings that Xtreme Caged Combat was required to retain counsel because it was a distinct legal entity was also rejected. The court noted that it cannot allow its construction of the complaint to stand when confronted with uncontroverted evidence that Extreme Caged Combat is a fictitious name for an entity incapable of bringing suit in its own right. Xtreme Caged Combat was therefore dismissed as a named plaintiff.

The motion for summary judgment was denied, however, with regard to Kerwin. While it was undisputed that Kerwin holds a matchmaker’s license and is not a licensed fight promoter in Pennsylvania, the court was not convinced that his failure to obtain a promoter’s license prevented him from bringing the instant lawsuit. Specifically, the court noted that the Pennsylvania Athletic Commission—the entity that regulates MMA—was aware Kerwin did not have a promoter’s license, but authorized him to promote MMA matches due to his collaboration with Henry Marchione, a supposed employee. Although the court had doubts that the partnership between Kerwin and Marchione fully conformed to the Athletic Code, the evidence suggested that Kerwin was authorized to compete in the relevant market and that he therefore had antitrust standing.

The case number is 14-5159.

Attorneys: A. Jordan Rushie (Mulvihill & Rushie LLC) for Ryan Kerwin. Jeffrey A. DiLazzero for Cage Fury Fighting Championships. Robert J. Bush (Robert J. Bush & Associates) for Xtreme Fight Events. Peter Michael Ryan (Cozen O'Connor) for Valley Forge Casino Resort. Lawrence M. Kelly (Mintzer Sarowitz Zeris Ledva & Meyers) for Chester Downs & Marina LLC.

Companies: Cage Fury Fighting Championships; Xtreme Fight Events; Valley Forge Casino Resort; Chester Downs & Marina LLC

Cases: Antitrust PennsylvaniaNews