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The “Good Faith” Defense Joe Hand Promotion, G&G Closed Circuit Events and J&J Sports probably don’t want you to know

Posted by Steve Vondran | Sep 16, 2018 | 0 Comments

Affirmative Defenses in Boxing Piracy Cases (alleged cable and satellite TV illegal broadcasting).

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Introduction

If you received a demand letter from G&G Closed Circuit Events, J&J Sports Production or Joe Hand Promotions in regard to a boxing match illegal broadcast at your commercial bar, tavern, restaurant, nightclub or other commercial establishment, you can expect to be in for a rough ride.  If you do not pay the demands the law firm representing these companies can get very aggressive, and many times have simply filed lawsuits.  This blog present ONE KEY DEFENSE to keep in mind.  I am pretty sure they do not want you to know about this potential defense.

What is a motion to strike affirmative defenses?

One tactic you might see these companies do (if you try to defend yourself in a lawsuit) is to file a MOTION TO STRIKE to try to block you from even trying to raise defenses.  Recently, I just won a motion against one of the main law firms that files boxing piracy cases in California and Arizona and they tried to prevent me from even raising affirmative defenses such as LICENSE and CONSENT for example.  The judge ruled in my favor and ultimately we have been allowed to raise our defenses.  So you need to be prepared that these companies may take that approach and you may find yourself wondering what the defenses might be to illegal broadcasting of championship fights might be.

Below is some key case law I put together that may help you if they are taking this rather aggressive litigation approach.  It all starts with knowing the standard of review when you are fighting a motion to strike.

Standard of Review

When a court is reviewing a motion to strike affirmative defenses in a boxing piracy case, or even in a software infringement, photo infringement, or copyright infringement case, there is a high level of deference given to a Defendant who SHOULD BE ALLOWED TO RAISE THEIR DEFENSES.  If they try to fight you, here is some federal case law that might help (note, do not rely on this as it is general legal information only, you may want to consult with your TV signal piracy counsel).

Rule 12(f) provides that a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).

However, Rule 12(f) motions are “generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic.” Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). “Ultimately, whether to grant a motion to strike lies within the sound discretion of the district court.” Id. Unless it would prejudice the opposing party, courts freely grant leave to amend stricken pleadings. Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979); see also Fed. R. Civ. P. 15(a)(2).

If a court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving the assessment of the sufficiency of the allegations for adjudication on the merits after proper development of the factual nature of the claims through discovery. See generallyWhittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974–75 (9th Cir. 2010).

Rule 8(c) provides, in pertinent part, that “a party must affirmatively state any avoidance or affirmative defense.” Fed. R. Civ. P. 8(c). The Ninth Circuit states that “[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.” Wyshak, 607 F.2d at 827 (citing Conley v. Gibson, 355 U.S. 41, 47−48 (1957)); accordSimmons v. Navajo, 609 F.3d 1011, 1023 (9th Cir. 2010); Schutte & Koerting, Inc. v. Swett & Crawford, 298 Fed. Appx. 613, 615 (9th Cir. 2008).

Under the fair notice standard, a defendant is only required to “state the nature and grounds for the affirmative defense.” Kohler v. Islands Restaurants, LP, 280 F.R.D. 560, 564 (S.D. Cal. 2012) (citing Conley, 355 U.S. at 47). “On the other hand, an affirmative defense is legally insufficient only if it clearly lacks merit ‘under any set of facts the defendant might allege.'” Id. (quoting McArdle v. AT&T Mobility, LLC, 657 F. Supp. 2d 1140, 1149–50 (N.D. Cal. 2009)). The pleadings are only required to describe each defense in “general terms,” as long as it gives the plaintiff fair notice of the nature of the defense. Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015).   See Springer v. Fair Isaac Corp., No. 14-CV-02238-TLN-AC, 2015 WL 7188234, at *2 (E.D. Cal. Nov. 16, 2015).  (emphasis added).

An affirmative defense is legally insufficient only if it clearly lacks merit under any set of facts the defendant might allege. Id. “For well-established defenses, merely naming them may be sufficient.” (ECF No. 15-1 at 3) (citing Ganley v. Cnty. Of San Mateo, No. C06-3923 TEH, 2007 WL 902551, at *2 (N.D. Cal. Mar. 22, 2007)). A motion to strike an affirmative defense should only be granted if there are no questions and disputes of fact or law and under no set of circumstances could the defenses succeed. Carter-Wallace, Inc. v. Riverton Lab., Inc., 47 F.R.D. 366, 368 (S.D.N.Y. 1969).”

As you can see, if you are raising defenses and the Plaintiff is on notice of your facts (they may push you to allege facts supporting your defenses) supporting your defenses, you should be allowed to raise defenses,

The “GOOD FAITH DEFENSE” in infringement cases

Here is a case I found during my legal research that MAY provide some help, for example, where the business owner acted in good faith.  See Springer v. Fair Isaac Corp. which noted:

Defendant's third affirmative defense of reasonable and good faith states: “Defendant's actions were taken in good faith, in reliance upon information provided by its customers and others, and with a reasonable belief that such actions were legal, appropriate and necessary. The conduct alleged to be in violation of a statute, if any such conduct occurred, was purely unintentional, and occurred, if at all, despite Defendant's reasonable and appropriate efforts to avoid any such violation.” Plaintiff moves to strike this affirmative defense on the grounds that good faith affirmative defenses are not applicable to the TCPA because it is a strict liability statute. Defendant disagrees, arguing that a good faith affirmative defense that claims a prior express consent does apply to the TCPA.  [Note Plaintiff may argue that section 605 and 553 are strict liability statutes similar to the TCPA]] The Court agrees with Defendant and will allow the third affirmative defense to stand.  The TCPA was enacted to combat the proliferation of automated telemarketing calls to private residences.  Scatterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009) (reversing the district court's decision on other grounds). To prove a claim under the TCPA, a plaintiff must show that (1) the defendant called a cellular telephone number, (2) using an automatic telephone dialing system, (3) without the recipient's prior consent. 47 U.S.C. § 227(b)(1). The TCPA specifically exempts a caller from liability if the caller has received “prior express consent” from the recipient to be called. 47 U.S.C. § 227(b)(1)(A). Express consent is “[c]onsent that is clearly and unmistakably stated.” Black's Law Dictionary 323 (8th ed. 2004).  The Ninth Circuit has not addressed whether general good faith defenses may be raised in a TCPA claim.  Olney v. Job.com, Inc., (E.D. Cal. May 01, 2014) (“The parties have cited no authority from the Ninth Circuit that addresses whether TCPA is a strict liability statute, and the Court is unaware of any.”). However, courts across the Ninth Circuit have allowed for TCPA defendants to raise prior express consent defenses, which is a form of good faith defense.  Scatterfield, 569 F.3d at 955;  Reardon v. Uber Technologies, Inc., (N.D. Cal. July 19, 2015);  Chyba v. First Financial Asset Management, Inc., No. 12-cv-1721, 2014 WL 1744136, at *10 (S.D. Cal. Apr.30, 2014);  Robbins v. Coca-Cola-Co. (S.D. Cal. May 22, 2013).

Some defenses must be RAISED or they are deemed WAIVED

You may have to argue to the Court that your defenses MUST be allowed.  For example,  FRCP 8(c)(1): Rule 8(c)(1) contains a  nonexhaustive list of affirmative defenses that are  waived if not pled in the answer. [See  Jones v. Bock (2007) 549 US 199, 212, 127 S.Ct. 910, 919;  In re Adbox, Inc. (9th Cir. 2007) 488 F3d 836, 842, fn. 2].

      If the following matters are not raised in the answer, they are deemed waived:

  • accord and satisfaction;
  • arbitration and award;
  • assumption of risk;
  • contributory negligence;
  • duress;
  • estoppel;
  • failure of consideration;
  • fraud;
  • illegality;
  • injury by fellow servant;
  • laches;
  • license;
  • payment;
  • release;
  • res judicata (claim preclusion or issue preclusion);
  • statute of frauds;
  • statute of limitations;
  • waiver.

A party should be allowed to affirmatively state any avoidance or affirmative defense” when they are being sued by GG, J&J, or Joe Hand.

TV Signal Piracy Resources

  1. Overview of boxing match piracy claims (VIDEO)
  2. Surreptitious tape recording in Arizona
  3. DO NOT RECORD VIDEO IN OUR ESTABLISHMENT (trespasser)
  4. Are private investigators runners for TV signal piracy business?

Contact a Federal Piracy Defense Law Firm

We have helped many companies settle claims with J&J Sports Productions, G&G Closed Circuit Events, and Joe Hand Promotions.  If you received a legal demand letter or subpoena, contact us to discuss at (877) 276-5084. 

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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