Case 1:16-cv-04423-ALC-GWG Document 345 Filed 05/09/18 Page 1 of 3

Kent A. Yalowitz
+1 212.836.8344 Direct
Kent.Yalowitz@arnoldporter.com

May 9, 2018

VIA ECF AND FAX

The Honorable Gabriel W. Gorenstein

United States Magistrate Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007

Re: Wilder et al. v. World of Boxing LLC et al., No. 16 Civ. 4423 (ALC) (GWG)
World of Boxing LLC et al. v. Wilder et al., No. 16 Civ. 4870 (ALC) (GWG)

Dear Judge Gorenstein:

This firm represents the World of Boxing Parties in the above-referenced actions.1

I write in response to the letter of earlier today from counsel for the Wilder Parties, and
also to recommend to the Court the remaining steps to be taken in this case.

1. The Court Should Enter the Judgment in 16 Civ. 4423

For the reasons stated in my letter of May 1, 2018 (DE 342) the Court should enter
judgment in Case No. 16 Civ. 4423.

Yesterday, the Wilder parties informed us that they intend to appeal the Court’s opinion
and order entered April 19 (DE 331). Because the Wilder parties have used the lack of a final
judgment as a reason to delay distribution of the escrow account, and because under applicable
law the Court’s opinion and order is a final decision in Case No. 16 Civ. 4423, the Court should
not further delay the entry of judgment.

Nothing in the Wilder parties’ letter of earlier today rebuts the showing in our letter of
May 1. Their silence is an effective concession that they are using the delay in entry of judgment
to delay distribution of the escrow agreement. They have nothing to say about the text of Rule
58 (which is mandatory) nor about the explanation of the drafters’ intent by Chief Judge Clark
writing for the Second Circuit in Matteson v. United States, 240 F.2d 517, 518 (2d Cir. 1956).

1
All defendants in No. 16 Civ. 4423 and all plaintiffs in No. 16 Civ. 4870.

Arnold & Porter Kaye Scholer LLP

250 West 55th Street | New York, NY 10019-9710 | www.arnoldporter.com
 Case 1:16-cv-04423-ALC-GWG Document 345 Filed 05/09/18 Page 2 of 3

Hon. Gabriel W. Gorenstein

May 9, 2018
Page 2

They have nothing to say in response to our showing that the record is devoid of any suggestion
that any party or this Court relied on pre-Hall precedent concerning appellate jurisdiction in
connection with consolidation. They have nothing to say in response to our showing that they
waived any defense that the defamation claim should have been brought as a compulsory
counterclaim. And they simply ignore our showing that such a defense would have been
meritless, anyway, under well-established Second Circuit law. See Adam v. Jacobs, 950 F.2d 89,
93 (2d Cir.1991); Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652 n.5 (2d Cir.
1987); Speed Prod. Co. v. Tinnerman Prod., 222 F.2d 61, 68 (2d Cir. 1955).

2. The Court Should Continue the Stay of the Defamation Claim

We respectfully recommend that the Court continue the existing stay through the
completion of the Wilder Parties’ anticipated appeal.

As the Court will recall, the parties stipulated to a stay of the defamation claim, and the
Court so-ordered the stipulation. See DE 118 in Case No. 16 Civ. 4870.

The parties expressly agreed that “significant efficiencies may be achieved by staying
proceedings on the Defamation Claim until an appropriate time in the future, whether after the
resolution of contemplated motion practice, or appellate proceedings.” Id.

Those efficiencies continue to be manifest. As an initial matter, the stay was entered
after Judge Carter denied the World of Boxing Parties’ Rule 50 motion (DE 266)—and after the
parties had already agreed on a briefing schedule for summary judgment (DE 273). Thus,
nothing germane has changed since entry of the stay.

In addition, the Wilder parties have now indicated that they plan to make a summary
judgment motion to dismiss the defamation claim on the ground that the jury’s verdict means
that all the defamatory statements at issue were true and therefore not actionable. Such a motion
could obviously have been made at the time of the last round of summary judgment motions. It
was inefficient to do so then, and it continues to be inefficient at this time, because the Wilder
Parties’ anticipated summary judgment motion rests on the assumed validity of the jury verdict,
which will be at issue in the Wilder Parties’ anticipated appeal. (We have previously set forth
the reasons why we believe that the verdict should have been disregarded, and we continue to
hold the view that the verdict will not withstand analysis on appeal.)

The Wilder parties themselves have acknowledged that a summary judgment motion at
this time would be inefficient and potentially wasteful (though for different reasons than those
we set forth here). They therefore suggested in a letter sent yesterday that the parties “stipulate
to dismiss the defamation claim without prejudice and enter into a tolling agreement.”
 Case 1:16-cv-04423-ALC-GWG Document 345 Filed 05/09/18 Page 3 of 3

Hon. Gabriel W. Gorenstein

May 9, 2018
Page 3

In contrast to a continuation of the current stay, dismissal without prejudice combined

with a tolling agreement would be cumbersome, as the potential risks to a plaintiff inherent in
open-ended tolling agreements would as a practical matter necessitate the negotiation of
successive tolling agreements during the pendency of the appeal. See Bayridge Air Rights, Inc.
v. Blitman Constr. Corp., 80 N.Y.2d 777, 780 (1992); T & N PLC v. Fred S. James & Co. of
N.Y., 29 F.3d 57, 62 (2d Cir. 1994). This could expose the World of Boxing Parties to
unnecessary cost and risk, with no countervailing savings of judicial resources.

The most efficient course is simply to continue the current stay until the conclusion of the
appeal, as anticipated when the stay was entered.

Respectfully yours,

cc: ECF Counsel