Reply Brief

18-1543-cv L , 18-1567-cv(XAP)
Case 18-1543, Document 85, 01/22/2019, 2479798, Page1 of 64
( )
United States Court of Appeals
for the
Second Circuit
DEONTAY WILDER, DIBELLA ENTERTAINMENT, INC,
Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees,
– v. –
WORLD OF BOXING LLC, ALEXANDER POVETKIN,
Defendants-Counter-Claimants-Appellees-Cross-Appellants.
––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
REPLY BRIEF FOR PLAINTIFFS-COUNTER-DEFENDANTS-

APPELLANTS-CROSS-APPELLEES
JUDD BURSTEIN
PETER B. SCHALK
JUDD BURSTEIN P.C.
Attorneys for Plaintiffs-Counter-Defendants-
Appellants-Cross-Appellees
Five Columbus Circle, Suite 1501
New York, New York 10019
(212) 974-2400
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
POINT I
THE WOB PARTIES HAVE FAILED TO REBUT THE WILDER

PARTIES’ SHOWING THAT THEY ARE ENTITLED TO
JUDGMENT AS A MATTER OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. THE WBC’S DISCRETION CANNOT NULLIFY

THE WOB PARTIES’ BREACHES . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. THE WOB PARTIES FAIL TO ESTABLISH

THAT POVETKIN DID NOT BREACH . . . . . . . . . . . . . . . . . . . . 12
C. THE WOB PARTIES’ MISCELLANEOUS ARGUMENTS

DO NOT WITHSTAND SCRUTINY . . . . . . . . . . . . . . . . . . . . . . . 19
D. THE WOB PARTIES’ ARGUMENT THAT THE JURY

DECIDED AN IMMATERIAL FACT UNDERSCORES
THE DISTRICT COURT’S ERROR . . . . . . . . . . . . . . . . . . . . . . . . 21
POINT II
THE WOB PARTIES FAIL TO ESTABLISH THAT THE DISTRICT

COURT ERRED IN DISMISSING THEIR CLAIM FOR BREACH
OF THE BOUT AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. THE DISTRICT COURT CORRECTLY HELD THAT NO

REASONABLE JUROR COULD CONCLUDE THAT
THE WILDER PARTIES PROXIMATELY CAUSED
THE WOB PARTIES’ ALLEGED DAMAGES . . . . . . . . . . . . . . . 23
i
B. THE WOB PARTIES FAIL TO DEMONSTRATE THAT

THE DISTRICT COURT’S PROXIMATE CAUSE
ANALYSIS CONSTITUTED ERROR, LET
ALONE REVERSIBLE ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
C. ALTERNATIVE GROUNDS TO AFFIRM . . . . . . . . . . . . . . . . . . 33
D. A REMAND FOR DAMAGES IS NOT REQUIRED . . . . . . . . . . . 38
E. THE DISTRICT COURT’S DISMISSAL OF THE GOOD

FAITH AND FAIR DEALING CLAIM WITH RESPECT
TO THE BOUT AGREEMENT SHOULD BE
AFFIRMED AS UNOPPOSED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
POINT III
THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S

DISMISSAL OF THE WILDER PARTIES’ CLAIM FOR
BREACH OF THE ESCROW AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
POINT IV
THE COURT SHOULD NOT VACATE THE JURY VERDICT . . . . . . . . . . . . 44
A. THE WOB DOCUMENTS WERE PROPERLY EXCLUDED . . . 44
B. THE TESTIMONY OF DR. BUTCH, WHO WAS THE

DIRECTOR OF THE UCLA LAB, WAS PROPER . . . . . . . . . . . . 47
C. THE WOB PARTIES’ OWN COUNSEL WERE RESPONSIBLE

FOR THE DISCOVERY DELAYS THAT THEY OBJECT
TO ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
D. THE ALLEGED ATTORNEY MISCONDUCT DOES

NOT WARRANT A NEW TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . 52
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ii
TABLE OF AUTHORITIES
CASES
AllGood Entm’t, Inc. v. Dileo Entm’t & Touring, Inc.,

No. 09 CIV. 5377 HB, 2010 WL 3322530 (S.D.N.Y. Aug. 19, 2010) . . . . 14
Barbara v. MarineMax, Inc.,

577 F. App’x 49 (2d Cir. 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Campbell v. Cellco P’ship,

No. 10 CIV. 9168, 2012 WL 3240223 (S.D.N.Y. 2012) . . . . . . . . . . . . . . 44
Catlin Specialty Ins. Co. v. QA3 Fin. Corp.,

629 F. App’x 127 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Charles O. Finley & Co. v. Kuhn,

569 F.2d 527 (7th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7-8
Chem One, Ltd. v. M/V RICKMERS GENOA,

502 F. App’x 66 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
Children of America (Cortlandt Manor), LLC v. Pike Plaza Assocs.,

LLC, 113 A.D.3d 583 (2d Dep’t 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Condor Funding, LLC v. 176 Broadway Owners Corp.,

147 A.D.3d 409 (1st Dep’t 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Crouch v. Nat’l Ass’n For Stock Car Auto Racing, Inc.,

845 F.2d 397 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Emelianenko v. Affliction Clothing,

No. 09-07865 MMM (MLGX),
2011 WL 13176755 (C.D. Cal. July 28, 2011) . . . . . . . . . . . . . . . . . . . . . . 15
iii
First Nat. Bank of Bos. v. Manufacturers Hanover Tr. Co.,

No. 90 CIV. 7569 (LBS), 1991 WL 125188 (S.D.N.Y. July 2, 1991),
supplemented, No. 90 CIV. 7569 (LBS), 1991 WL 258800
(S.D.N.Y. Nov. 26, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Futterman Indus., Ltd. v. Imptex Int’l Corp.,

146 A.D.2d 520 (1st Dep’t 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Gen. Elec. Co. v. Joiner,

522 U.S. 136 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Gussack Realty Co. v. Xerox Corp.,

224 F.3d 85 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Hart v. Consol. Rail Corp.,

No. 96 Civ. 1769, 1998 WL 865572
(N.D.N.Y. Dec. 9, 1998) (Sculin, J.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Harbor Hill Lithographing Corp. v. Dittler Bros.,

76 Misc. 2d 145 (Sup. Ct., Nassau Co. 1973) . . . . . . . . . . . . . . . . . . . . . . . 29
Hecht v. Commerce Clearing House, Inc.,

897 F.2d 21 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
In re Fosamax Products Liability Litig.,

742 F. Supp. 2d 460 (S.D.N.Y. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Inryco, Inc. v. Parsons & Whittemore Contractors Corp.,

55 N.Y.2d 666 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Kaplan v. Madison Park Group Owners,

LLC, 94 A.D.3d 616 (1st Dep’t 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
King World Prods., Inc. v. Fin. News Network, Inc.,

660 F. Supp. 1381 (S.D.N.Y. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33
iv
King World Prods., Inc. v. Fin. News Network,

834 F.2d 267 (2d Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Barbara v. MarineMax, Inc.,

577 F. App’x 49 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n,
820 F.3d 527 (2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Pesa v. Yoma Dev. Grp., Inc.,

18 N.Y.3d 527 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29
Presbyterian Church Of Sudan v. Talisman Energy, Inc.,

582 F.3d 244 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Process Am., Inc. v. Cynergy Holdings, LLC,

839 F.3d 125 (2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Rothstein v. UBS AG,

708 F.3d 82 (2d Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Scotto v. Almenas,
143 F.3d 105 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28
Selzer v. New York City Transit Authority,

100 A.D.3d 157 (1st Dep’t 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53-54
U.S. Overseas Airlines, Inc. v. Compania Aerea Viajes

Expresos De Venezuela, S.A.,
246 F.2d 951 (2d Cir. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
United States v. Dukagjini,

326 F.3d 45 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-49
United States v. Feliciano,

223 F.3d 102 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
v
United States v. Mejia,

545 F.3d 179 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48,-49
United States v. Sorondo,

845 F.2d 945 (11th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-46
United States v. Stanley,

No. 3:15-CR-198 (JAM),
2016 WL 7104825 (D. Conn. Dec. 4, 2016) . . . . . . . . . . . . . . . . . . . . . . . . 48
United States v. Truman,

581 Fed.Appx 26 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
United States v. Whitten,

610 F.2d 168 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Watts v. Columbia Artists Mgmt. Inc.,

188 A.D.2d 799 (3d Dep’t 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15
Wilder v. World of Boxing LLC,

310 F. Supp. 3d 426 (S.D.N.Y. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
World of Boxing LLC v. King,

56 F. Supp. 3d 507 (S.D.N.Y. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
STATUTES AND OTHER AUTHORITIES
Fed.R.Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Fed.R.Evid. 703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Fed.R.Evid. 803(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38-39, 47
Fed.R.Evid.1002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Fed.R.Evid. 1006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
vi
Plaintiffs/Counter-Defendants-Appellants/Cross-Appellees Deontay Wilder
(“Wilder”), DiBella Entertainment Inc., and Lou DiBella (collectively the “Wilder
Parties” and at times “Wilder”), as and for their Brief (a) in reply in further support
of their appeal, and (b) in opposition to the cross-appeal of Defendants/Counter-
Plaintiffs World of Boxing LLC (“WOB”) and Alexander Povetkin (“Povetkin”)
(collectively the “WOB Parties” and at times “WOB” or “Povetkin”), respectfully
submit the following:
ARGUMENT
POINT I
THE WOB PARTIES HAVE FAILED TO REBUT THE WILDER

PARTIES’ SHOWING THAT THEY ARE ENTITLED TO
JUDGMENT AS A MATTER OF LAW
A. The WBC’s Discretion Cannot Nullify The WOB Parties’ Breaches
The Wilder Parties’ opening brief (“Initial Wilder Brief”) demonstrated how
the District Court’s summary judgment decision effectively wrote the New York
choice of law and forum selection clauses out of the Bout Agreement. (See Initial
Wilder Brief at 34-36, citing Inryco, Inc. v. Parsons & Whittemore Contractors Corp.,
55 N.Y.2d 666, 667, 431 N.E.2d 291, 292 (1981) and Futterman Indus., Ltd. v. Imptex
Int’l Corp., 146 A.D.2d 520, 536 N.Y.S.2d 85, 85 (1st Dep’t 1989)). In particular, the
District Court relied on a November 2017 WBC ruling – that postdated separate
rulings stating that the WBC would honor the jury verdict – in which the WBC found
that despite the jury’s verdict that Povetkin ingested meldonium after January 1, 2016,
the WBC does not believe that it is possible to ascertain that he did so. The November
2017 decision was based on the WOB Parties’ ex parte submissions, and it
specifically referenced a $250,000 payment that Povetkin was making to the WBC in
connection with its ruling. The District Court imported the WBC’s suspect finding
into this case as the basis for its award of summary judgment to the WOB Parties, in
conflict with the jury’s verdict.
In seeking to justify the District Court’s erroneous holding on this issue, the
WOB Parties turn to case law concerning the discretion of private organizations in
interpreting their own rules. (See the WOB Parties’ Opening Brief (“WOB Brief”),
pp. 19-21, citing Crouch v. Nat’l Ass’n For Stock Car Auto Racing, Inc., 845 F.2d 397
(2d Cir. 1988); Nat’l Football League Mgmt. Council v. Nat’l Football League
Players Ass’n, 820 F.3d 527 (2d Cir. 2016); and Charles O. Finley & Co. v. Kuhn, 569
F.2d 527 (7th Cir. 1978)). The WOB Parties’ reliance on this case law is misplaced.
Fundamentally, the WOB Parties’ authority all concerns what standard of review a
court should apply when evaluating private organizations’ interpretation of their own
rules when that private organization’s actions are challenged by a member.
To begin, this case is completely unlike Crouch v. Nat’l Ass’n For Stock Car
Auto Racing, Inc., 845 F.2d 397 (2d Cir. 1988), which is the principal authority relied
2
upon by the WOB Parties. In Crouch, a stock car racer (“Crouch”) was originally
awarded first place by the local race track in a stock car race sponsored by
“NASCAR”. However, the local track’s decision was based upon the imposition of
various penalties upon another driver (“LaJoie”). LaJoie appealed the penalties to
NASCAR, which interpreted its rules to reverse the local track’s decision regarding
penalties, and declared LaJoie to be the winner of the event. The district court
disagreed with NASCAR’s interpretation of its own rules, and declared Crouch to be
the winner. This Court reversed, finding that the district court should have deferred
to NASCAR’s interpretation: “we do not agree with the court’s conclusion that it can
overrule an organization’s interpretation of its own procedural rules whenever the
court concludes that the organization’s interpretation is ‘unreasonable’ (especially
when ‘unreasonable’ is interpreted to mean simply that the court disagrees with the
interpretation, as is apparently the case here).” Crouch, 845 F.2d at 401. There are
numerous material distinctions between this case and Crouch.
First, the Wilder Parties’ claims are founded upon private parties’ breaches of
a separate contract between them, not a violation by the WBC of its own rules. In
contrast, the plaintiff in Crouch argued that NASCAR misinterpreted its own rules in
deciding the victor of the race, and he did not allege that LaJoie had breached a
contract that was separate and apart from NASCAR’s rules.
3
Second, the parties in Crouch did not enter into a contract containing a New
York choice of law provision and broad Southern District of New York forum
selection clause. Indeed, there was no separate contract in Crouch outside of
NASCAR’s rules.
Third, in contrast to Crouch where NASCAR was interpreting its own rules,
the jury in this case assessed scientific data and the credibility of witnesses who were
subject to cross-examination. The WBC has no special expertise in these matters, and
therefore its inability to determine when Povetkin ingested meldonium is entitled to
no deference by this Court.
Fourth, in Crouch, the race actually took place whereas here, the fight could
not proceed because Povetkin tested positive for meldonium. Thus, for Crouch to
bear upon our case, the Wilder-Povetkin fight (a) would have had to happen, with (b)
the judges issuing a decision for Wilder, but then (c) the WBC overruling the decision
in favor of Povetkin based on the WBC’s interpretation of its rules, and then (d)
Wilder filing suit in this Court alleging that the WBC erroneously interpreted those
rules in overruling the judges’ scoring to give Povetkin the win.
Fifth, in this case, the parties proceeded to trial after the WBC issued its ruling
of October 2016, which specifically stated that it intended for the jury to decide the
question of Povetkin’s meldonium use, not only in this case, but also regarding any
4
penalties it might impose upon Povetkin. (See A-856, § 2).1 Thus, in issuing its
subsequent, November 2017 ruling that disagreed with the jury’s meldonium finding,
the WBC disavowed its prior commitment to defer to the jury’s verdict, but only after
the parties went through a trial in the very forum that the WBC included in the Bout
Agreement. In Crouch, NASCAR consistently took the position that it was the proper
body to resolve the parties’ dispute based upon its interpretation of its own rules.
This Court’s decision in Nat’l Football League Mgmt. Council, 820 F.3d 527,
is even more inapplicable to the facts and procedural history of this case. Nat’l
Football League Mgmt. Council involved the “deflategate” controversy in which the
New England Patriots’ quarterback Tom Brady (“Brady”) was implicated in a scheme
to deflate footballs below regulation to make them easier to throw. Brady had
requested arbitration to challenge the four-game suspension he received as a result.
Brady participated in the requested arbitration before the NFL’s Commissioner, who
affirmed the suspension. Accordingly, in Nat’l Football League Mgmt. Council, there
was an actual arbitration called for by the rules of a private organization, and the
district court set aside that decision. It is well-established that an arbitrator’s decision
1
Citations noted “A-___” refer to the Joint Appendix, citations noted “SA-
___” refer to the Supplemental Appendix, and citations noted “SPA-___” refer to the
Special Appendix.
5
is entitled to significant deference, which was the driving force behind this Court’s
ruling in Nat’l Football League Mgmt. Council:
The basic principle driving both our analysis and our conclusion
is well established: a federal court’s review of labor arbitration awards
is narrowly circumscribed and highly deferential – indeed, among the
most deferential in the law. Our role is not to determine for ourselves
whether Brady participated in a scheme to deflate footballs or whether
the suspension imposed by the Commissioner should have been for three
games or five games or none at all. Nor is it our role to second-guess the
arbitrator’s procedural rulings. Our obligation is limited to determining
whether the arbitration proceedings and award met the minimum legal
standards established by the Labor Management Relations Act, 29
U.S.C. § 141 et seq. (the “LMRA”). We must simply ensure that the
arbitrator was “even arguably construing or applying the contract and
acting within the scope of his authority” and did not “ignore the plain
language of the contract.” United Paperworks Int’l Union v. Misco, Inc.,
484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987).
Id. at 532.
In contrast, here, the WBC never held an arbitration between the parties and
instead agreed that this dispute should be litigated in the Southern District of New
York, and separately pledged to abide by the jury’s determination only to reverse
itself. Accordingly, the “basic principle driving [this Court’s] analysis and [its]
conclusion” in Nat’l Football League Mgmt. Council is nowhere to be found here.
The WOB Parties also note that in deciding both Crouch and Nat’l Football
League Mgmt. Council, this Court relied on Charles O. Finley & Co. v. Kuhn, 569
F.2d 527 (7th Cir. 1978). However, this Court’s citation to the Seventh Circuit’s
6
decision in Charles O. Finley & Co. actually underscores the material distinctions
between this case and the WOB Parties’ case law. In Charles O. Finley, the Seventh
Circuit considered whether the Commissioner of baseball was contractually authorized
to disapprove player assignments which he found to be “not in the best interests of
baseball.” (Id. at 530). The dispute arose because the Commissioner had disapproved
various trades and his actions were challenged in court.
Therefore, once again, in Charles O. Finley, the claimed breach was not
perpetrated by an independent party to an independent contract, but arose from the
acts of the private organization based upon its internal rules. Perhaps even more
fundamentally, in the Major League Agreement, the parties had waived any recourse
to the courts, which stands in direct conflict with the forum selection clause in this
case. The Seventh Circuit held that “the waiver of recourse clause contained in the
Major League Agreement is valid and binding on the parties and the courts.” (Id. at
544).
In connection with these legal arguments, the WOB Parties also rely upon
Section 14 of the Bout Agreement, wherein the parties agreed that “in the event of any
dispute or controversy with respect to the contract, ‘all parties understand and agree
to be bound by the Rules & Regulations of the WBC.’” (WOB Brief, p. 18) (citing
A-66). But the parties’ dispute does not arise out of breaches of the WBC Rules; nor
7
have the parties refused to be bound by those rules. Indeed, none of the WBC Rules
speak to whether the inability of a mandatory challenger to meet his commitments
under a bout agreement because of a positive test for a banned substance should be
deemed a breach of contract. Rather, all the WOB Parties can point to are various
WBC Rules affirming its discretion to perform various acts. But by its own terms, the
WBC’s November 2017 decision is limited to the question of what discipline it should
impose on Povetkin. It does not reference the parties’ contract dispute at all, let alone
opine about its merits. Nevertheless, the District Court imported a WBC finding from
an unrelated decision that contradicted the jury’s verdict in this case, in order to rule
in the WOB Parties’ favor as a matter of law. In doing so, the District Court invaded
the province of the jury.
The WOB Parties also point to Section 20 of the Bout Agreement concerning
the WBC’s discretion regarding the conduct of the bout. That is irrelevant in this case,
because there was no bout. In contrast, that clause could have been relevant in a
Crouch type situation where the fight actually occurred, and a dispute arose about
rulings in connection with the conduct of the event.
In relation to this topic, the Initial Wilder Brief argued that the WBC
circumscribed any discretion it had with regard to the jury verdict when it issued its
October 2016 ruling. The WOB Parties contend that the Wilder Parties raised this
8
issue for the first time on appeal, but that is incorrect. (See Dkt. No. 311 at 10, where
the Wilder Parties argued that the WBC “pulled a bait and switch” by changing its
pretrial position in the October 2016 decision to the November 2017 post-trial
decision). Therefore, there is no basis for the WOB Parties to urge this Court not to
consider the point. Substantively, the WOB Parties completely misconstrue the plain
meaning of the WBC’s October 2016 ruling, claiming that “the language of the
October 2016 update provided that Povetkin would be granted an opportunity to rebut
an adverse jury finding.” (See WOB Brief, p. 23). But the WBC actually ruled:
The litigation pending between Wilder and Povetkin is going to trial in

February of 2017. If Mr. Wilder prevails at that trial, the WBC shall
afford Mr. Povetkin the opportunity to show that the trial’s result
was not based on a finding that Mr. Povetkin ingested Meldonium
after January 1, 2016. If Mr. Povetkin fails to make that showing the
WBC shall: (a) withdraw recognition of Povetkin as Interim World
Champion (if he wins that title); (b) withdraw any mandatory challenger
status he might have; and (c) impose any penalties upon Mr. Povetkin as
per the WBC Clean Boxing Program Protocol, which includes
suspensions and fines.
(A-856 at § 2) (emphasis supplied).
Thus, the WBC confirmed that the jury’s finding would remain in place
regardless of any showing by Povetkin post-trial. The WBC only allowed that
Povetkin would have a chance to minimize the WBC’s contemplated punishment if
he could show that the jury did not conclude that he had ingested meldonium when
it was banned: “the WBC shall afford Mr. Povetkin the opportunity to show that the
9
trial’s result was not based on a finding that Mr. Povetkin ingested Meldonium after
January 1, 2016.” (A-856). But that was the precise question posed to, and decided
by, the jury. Therefore, the WOB Parties are simply wrong in asserting that the
October 2016 decision afforded Mr. Povetkin a chance to challenge the jury’s actual
verdict. Indeed, if the WBC had so ruled, it would have raised significant concerns
about the viability of a trial, and Wilder would have had a chance to address those
issues – for example, by way of summary judgment motions addressing the meaning
of the Bout Agreement. Instead, the District Court and the parties squandered
resources going to trial, and the jury was forced to sit for a proceeding that ultimately
proved to be meaningless.
Evidently aware of the import of the October 2016 ruling, the WOB Parties
seek to minimize it by characterizing it as “an update,” not a ruling. (WOB Brief, p.
23). However, the WBC did not consider it to be advisory in nature, as confirmed in
its March 2017 ruling. (A-858: “On October 7, 2016, the WBC ruled....”). Nor did
the District Court deem it to be a mere update. (See SPA-13: “the WBC issued
another ruling on October 7, 2016....”). Rather, the District Court allowed the WBC
to change its mind post-trial to the detriment of the Wilder Parties. Importantly, the
WOB Parties never appealed the October 2016 ruling, and it should have been binding
10
upon them. (See A-761, WBC Rule 5.2, stating that an appeal must be filed in 15
calendar days “[t]o be recognized and valid....”).
In view of the foregoing, the Wilder Parties went to trial based on the
assumption that if they prevailed, the jury’s verdict would be honored. This
assumption was entirely reasonable not only because the WBC’s most recent October
2016 ruling should have been binding, but also the WOB Parties’ counsel consented
to a one-issue trial. (See A-584, where the District Court confirmed that WOB
“agree[d] to a single issue trial if the February, 2017 trial date remained.”). It was
only after trial that the WOB secretly appealed to the WBC and paid it $250,000 in
connection with a favorable decision that they then used to nullify the jury verdict.
B. The WOB Parties Fail to Establish That Povetkin Did Not Breach
As per the WOB Parties, Povetkin did not breach because “[t]he WBC never
disqualified Povetkin from participating in the bout.” (WOB Brief, p. 21). This is
semantics. Regardless of whether the WBC initially “postponed” or “cancelled” the
fight, it never rescheduled it. Instead, the WBC proceeded to suspend Povetkin from
participating in any WBC sanctioned fight for an entire year. Based on that
suspension, which was the direct result of Povetkin’s two consecutive positive tests
for banned substances, Povetkin could not live up to his obligations under the plain
language of the Bout Agreement for multiple reasons.
11
First, the Bout Agreement expressly stated that the match was to be a title fight
between the World Champion Wilder and the “current mandatory challenger”
Povetkin. (A-63). WBC Champions such as Wilder are obligated to fight at least one
mandatory fight a year unless granted an exception. (A-743-44, WBC Rule 3.5).
Mandatory defenses are often less desirable because champions have more prestigious
and financially remunerative fights available. If Wilder had been able to fight
Povetkin on May 21, 2016, it would have satisfied his mandatory obligation.
Champions only fight a few times a year, and losing the chance to satisfy his
mandatory obligations through the Povetkin fight was a major injury for Wilder.
In this respect, the WBC Rules provide that “[n]o bout shall be considered a
mandatory defense unless expressly approved as mandatory by the WBC, and made
exclusively against an official mandatory challenger designated by the WBC.” (A-
744, WBC Rule 3.5). Once Povetkin was suspended, he was expelled from the WBC
rankings and had not been reinstated as late as January 2018. (A-1749-51). As such,
the WBC no longer recognized Povetkin as the mandatory challenger to Wilder’s title,
which precluded Povetkin from performing his obligations under the Bout Agreement.
Notably, the November 2017 ruling did not reinstate Povetkin to his mandatory
contender status. (A-864 at No. 5). Instead, the November 2017 ruling only stated
that the WBC Ratings Committee would make a reasonable evaluation of his merits
12
and include Povetkin in its ratings following the end of his suspension. (Id.). Hence,
the result is the same regardless of whether the word “cancellation” or
“postponement” is used – Povetkin did not honor his obligation to participate in
Wilder’s WBC mandatory title defense.
Second, and relatedly, as also discussed in the Initial Wilder Brief, the May 21,
2016 fight date was a material term of the contract. (See Initial Wilder Brief at 40-45).
This was especially so under the facts of this case, where Wilder’s entire team traveled
to England to prepare for a fight in Russia that was scheduled for a specific date that
had been selected by WOB. (See id.). The WOB Parties respond that the WBC’s
discretion to postpone the bout means that Povetkin did not breach. But as noted, the
WBC never exercised its discretion to re-schedule the fight, and instead stripped
Povetkin of his ranking based on his repeated doping violations. Moreover, the WBC
never issued a ruling as to whether Povetkin’s inability to fight on the scheduled date
constituted a breach, regardless of its discretion to postpone the fight.
In support of their position that the date of the fight was a material term of the
Bout Agreement, the Wilder Parties relied upon AllGood Entm’t, Inc. v. Dileo Entm’t
& Touring, Inc., No. 09 CIV. 5377 HB, 2010 WL 3322530 (S.D.N.Y. Aug. 19, 2010)
and Watts v. Columbia Artists Mgmt. Inc., 188 A.D.2d 799 (3d Dep’t 1992). (See
Initial Wilder Brief at 40-45). The WOB Parties try to distinguish these authorities
13
by arguing that they are limited to the materiality of dates in relation to the formation
of a contract, which is supposedly divorced from its breach. (WOB Brief, p. 26). But
a party cannot breach a contract that was never formed. Moreover, the WOB Parties
are simply incorrect, as Watts did concern a breach. Specifically, in Watts, the court
held that an agent for a concert pianist was entitled to full commissions for bookings
as to which all “essential terms” had been agreed – including, critically, the date. In
other words, the contract pianist breached and the manager was entitled to damages.
Thus, Watts demonstrates the inextricable link between contract formation and breach
when the date of performance is a material term.
The WOB Parties’ reliance on DiBella’s testimony in Emelianenko v. Affliction
Clothing, No. 09-07865 MMM (MLGX), 2011 WL 13176755, at *12 (C.D. Cal. July
28, 2011), borders on bad faith. (See WOB Brief, p. 27). That case concerned mixed
martial arts (“MMA”), not boxing, let alone a WBC heavyweight title fight to be
staged in Russia. Moreover, the WOB Parties only cited a misleading excerpt from
DiBella’s testimony, thereby concealing the fact that DiBella actually opined that a
postponement was not possible in that case. Thus, contrary to the WOB Parties’
portrayal, DiBella concluded that “[w]hile a six-month postponement of a
pay-per-view bout that cannot go forward as scheduled is often practicable, a
postponement of the Fedor/Barnett Bout was not reasonably possible because
14
Affliction had no way of knowing when, or if, Barnett would be licensed.” (Id., at
*12). So too here, Wilder had no way of knowing whether Povetkin would be cleared
to fight. And while on the subject of expert witnesses, the WOB Parties’ own expert
conceded that the date of a fight is a material term. (A-1970, ¶ 8: “I do not disagree
... that the date of a title fight is an important term of the contract for the bout and that
postponing and re-scheduling a title bout can be difficult.”).
The WOB Parties also misleadingly cite to WBC Rule 3.8 in support of their
position that the May 21, 2016 date was not a material term of the Bout Agreement.
(See WOB Brief, p. 24: “The WBC Rules & Regulations state expressly that ‘any
previously-designated mandatory challenge may be ordered by the WBC . . . to be
rescheduled . . . [or] postponed by the WBC . . . .”) (Citing A-984-95, WBC Rule 3.8).
However, the WOB Parties make generous use of ellipses to excise key portions of
Rule 3.8. The omitted text actually shows that postponing mandatory fights is not at
all commonplace. Thus, in contrast to the WOB Parties’ portrayal, WBC Rule 3.8 is
titled “Special Bout Sanctions,” and it identifies situations such as “elite contenders,
champion of other organizations, or tournaments” as providing unusual circumstances
where the WBC might sanction special bouts. WBC Rule 3.8 then goes on to say that
when unusual circumstances call for a Special Bout Sanction, the WBC can postpone
a mandatory bout.
15
The WOB Parties’ citation to WBC Rules 3.1 and 3.6 is equally off base. (See
WOB Brief, p. 24). Those Rules concern the preferred timing for mandatory defenses
(see A-983, Rule 3.1), and the WBC’s discretion to extend a champion’s mandatory
obligations (see A-984, Rule 3.6). Therefore, neither WBC Rule 3.1 nor 3.6 came into
play here, because the WBC did not delay Wilder’s mandatory defense; it ordered him
to fight Povetkin.
As addressed in the Initial Wilder Brief, the case with facts most similar to ours
is World of Boxing LLC v. King, 56 F. Supp. 3d 507, 515 (S.D.N.Y. 2014) (the “Don
King case”). The WOB Parties respond by relying upon the District Court’s
distinguishing of the case. (See WOB Brief, p. 22). In essence, the Lower Court
disregarded the Don King case because the Rules of the sanctioning body (the
“WBA”) at issue in that case expressly prohibit the use of banned substances, while
the WBC’s rules afford it more discretion to address a doping violation.2 Specifically,
the District Court concluded that “The Court found that Jones’s promoter was liable
for breach because the WBA’s rules required the suspension of any boxer who tested
positive for a banned, performance-enhancing substance, thereby rendering it
impossible for Jones’s promoter to fulfill his contractual obligation.[] By contrast, the
2
Contrarily, the District Court conceded that the WBC’s Rules also
provide that “a fighter ‘should not’ ingest a performance-enhancing substance.”
(SPA-40).
16
Bout Agreement here provided the WBC with discretion to both determine whether
its anti-doping requirements had been violated, and to make decisions about whether
the Bout would be held on the date provided in the Bout Agreement.” See Wilder v.
World of Boxing LLC, 310 F. Supp. 3d 426, 445 (S.D.N.Y. 2018) (footnote omitted).
This is not a meaningful distinction, because the WBC never exercised its discretion
to reschedule the fight. Nor did the WBC ever opine as to whether Povetkin or WOB
breached. Fundamentally, the District Court disregarded one of the key points from
the Don King case – that the inability of a promoter to promote a championship fight,
or a boxer to participate in it, constitutes a breach of contract. There is no dispute that
this happened here, and it is undeniable that Povetkin’s positive test for meldonium
was the proximate cause of the WOB Parties’ failure to perform.
In contrast to the holding in the Don King case, the WOB Parties argue that the
notion that the May 21, 2016 fight date was a material term could lead to absurd
results. (See WOB Brief, p. 28). The WOB Parties then dream up a strained
hypothetical where Povetkin’s “B Sample” came back negative and the initial positive
was due to lab error. The main problem with this hypothetical is that it is divorced
from reality. Povetkin’s “B Sample” also came back positive, and prior to his very
next WBC sanctioned fight, Povetkin again tested positive, this time for the banned
substance ostarine. Of course, if Povetkin actually thought that he was the victim of
17
a false positive, he would have immediately had the “B Sample” tested so that the
Wilder fight could have gone forward as scheduled, or with only a minimal delay.
Instead, Povetkin waited until May 26, 2016 to have his “B Sample” tested (see A-85
at ¶ 55), which was after he was supposed to fight Wilder. Those results were also
positive, and confirmed that Povetkin’s “A Sample” was not a false positive.
C. The WOB Parties’ Miscellaneous Arguments Do Not Withstand Scrutiny
The WOB Parties proffer miscellaneous arguments on the question of breach,
which are all meritless. (See WOB Brief, pp. 28-29).
First, the WOB Parties argue that the WBC cannot be deemed to have been
serving in an appellate role to the District Court, because it was simply making its
own determination. (See WOB Brief, p. 28). But the WOB Parties argued to the
District Court that the WBC’s November 2017 ruling should be substituted for the
jury’s verdict. The WOB Parties argued this position despite having previously
consented to a one-issue trial (A-584), and the District Court adopted it.
Second, the WOB Parties misconstrue the Wilder Parties’ argument about how
the November 2017 ruling interfered with VADA’s authority. (See WOB Brief, p. 29,
where they claim that the Wilder Parties argued that the November 7 ruling
improperly interfered with “the WBC’s own rules.”). In reality, the Wilder Parties
contend that the November 7 ruling interfered with the Bout Agreement, not the
18
WBC’s rules. (Initial Wilder Brief at 52-53). This interference was based upon the
Bout Agreement’s express provision that “[n]o party, including the WBC, may
interfere or dictate any of VADA’s course of action[.]” (A-707 § 7). The WBC
drafted the Bout Agreement, so it obviously agreed to this provision. Moreover,
VADA’s “course of action” was to select the UCLA Lab to test the fighters’ samples
which resulted in Povetkin’s positive result for meldonium. The WBC’s decision
vitiated Povetkin’s positive result as determined by both VADA and the jury in this
case. The WBC was free to exercise its discretion to limit the punishment it meted out
to Povetkin, but it was not appropriate for it to interfere with VADA’s course of
action, and in doing so, determine the outcome of this litigation.
Third, the WOB Parties argue that Wilder should not have participated in a
WBC sanctioned fight against Chris Arreola (“Arreola”) on July 16, 2016. However,
the WBC explicitly authorized Wilder to participate in that bout after it called off the
May 21, 2016 fight in the wake of Povetkin’s positive test for meldonium. (A-848:
“In light of Mr. Povetkin’s adverse finding, the WBC ... [a]fforded champion Wilder
a voluntary defense of his title in order to keep him active[.]”). Wilder may have been
injured in that fight, but this is boxing, and the WBC was aware of the risk of injury
when it authorized Wilder to fight a substitute bout. Further, the WBC proceeded to
authorize Povetkin to participate in a sanctioned bout against Berman Stiverne
19
(“Stiverne”). However, that fight also blew up when Povetkin tested positive for
ostarine, at which point the WBC had no choice but to suspend him.
In all events, even if the WBC had ordered Wilder to fight Povetkin in a
postponed bout instead of approving his fight against Arreola, Povetkin tested positive
for ostarine in anticipation of his very next fight. Thus, if we indulge in the sheer
speculation that the WOB Parties ask this Court to do, there is every reason to believe
that Povetkin would have tested positive for ostarine regardless of whether his next
opponent was Wilder or Stiverne. But the fact remains that Povetkin was ineligible
to fight Wilder when it mattered, on May 21, 2016, and at all relevant times thereafter
due to his suspension and removal from the WBC rankings.
D. The WOB Parties’ Argument That The Jury Decided An Immaterial Fact
Underscores The District Court’s Error
The WOB Parties argue that the jury decided an immaterial fact. However, the
single issue that the jury decided was only immaterial because the District Court
rendered it nugatory by retroactively applying the WBC’s November 2017 ruling to
override the jury verdict. In making this argument, the WOB Parties point to the
supposed shifting strategies employed by the Wilder Parties’ trial counsel concerning
when Povetkin took meldonium. In reality, the parties went to trial understanding that
it was going to be a one-issue trial – specifically, whether Povetkin ingested
meldonium on or after January 1, 2016. The strategies of trial counsel could not, and
20
did not, change that one issue. Regardless, the WOB Parties are incorrect, because
counsel for the Wilder Parties consistently argued that the logical conclusion to draw
from Povetkin’s first three negative tests for meldonium on April 7, 8, and 11,
followed by the positive test on April 27, 2016, was that he ingested it after the
negative April 11 test and prior to the April 27 test. (SA-509, 1103-04).
The WOB Parties also raise a supposed “stunning admissions” about whether
Povetkin was actually tested for Meldonium on April 7, 8, and 11, 2016. This is a
complete red herring. There was no doubt that UCLA’s Lab tested Povetkin’s
samples of April 7, 8, and 11 for Meldonium, because it produced the results of two
forms of testing for Meldonium corresponding to those dates, specifically, the initial
screen tests and the more rigorous confirmation testing. (See SA-1294-98).3 Those
results unequivocally confirmed two things: (a) that there was no Meldonium in
3
The UCLA Lab employs a two-part testing regimen before reporting a
positive result. First, they perform a screen test. If the screen test provides an
indication that the sample may contain a banned substance, the UCLA Lab subjects
the sample to confirmation testing, which is a far more rigorous test. The UCLA Lab
only reports a positive result after a positive screen is confirmed through confirmation
testing. (A-585). Here, Povetkin’s three negative samples from April 7, 8, and 11 all
had indications of a molecule that was similar in weight to meldonium. Accordingly,
based on the screen test results, the UCLA lab further subjected the April 7, 8, and 11
negative samples to confirmation testing, which confirmed that they were indeed
negative for meldonium. (A-587). In this respect, the Wilder Parties’ expert testified
at trial that the molecule present in the negative tests could not have been meldonium
because it had a different molecular weight than meldonium. (Id.).
21
Povetkin’s system on April 7, 8, or 11, and a fortiori, (b) that UCLA tested Povetkin’s
samples for Meldonium via both the rigorous confirmation testing and the initial
screens which led to the confirmation testing. (Id.; see also A-587).
In fact, the WOB Parties’ own expert, Dr. De Boer, reconstructed the raw data
that UCLA produced corresponding to Povetkin’s April 7, 8, and 11, 2016 negative
tests to argue that Meldonium actually had been present in those samples when UCLA
tested for it. (See A-402-04, where Dr. De Boer analyzed the “Mass spectrum
extracted from raw data” for the April 7, 8, and 11 tests). Indeed, in denying the
WOB Parties’ post-trial motion, the District Court confirmed that during the trial: “De
Boer referred to the UCLA lab data from Povetkin’s April [7, 8, and 11] [urine
samples].” (A-589). While the jury appropriately rejected Dr. De Boer’s
“simulations” as not credible, there is no doubt that these simulations were based on
the raw data UCLA produced for the Meldonium tests that it performed on Povetkin’s
first three samples. Put another way, Dr. De Boer could not have performed his
simulations without the data UCLA generated in testing Povetkin’s April 7, 8, and 11
samples for Meldonium.
22
POINT II
THE COURT SHOULD AFFIRM THE DISTRICT COURT’S

DISMISSAL OF THE WOB PARTIES’ CLAIM FOR BREACH OF
THE BOUT AGREEMENT
A. The District Court Correctly Held That No Reasonable Juror Could

Conclude That The Wilder Parties Proximately Caused The WOB Parties’
Alleged Damages
The District Court properly dismissed the WOB Parties’ claim that Wilder
repudiated the WBC Bout Agreement. While the District Court acknowledged the
existence of other potential grounds to dismiss the repudiation claim (SPA-28), it
limited its holding to one issue: proximate cause. The District Court framed the issue
as follows:
We begin by noting that even the WOB Parties themselves assert

that their damages flow from the fact that the Bout did not take place.
WOB claims damages for the expenses it incurred “in reliance upon [the
Wilder Parties’] promises to perform” under the Bout agreement – that
is, to fight in the Bout. WOB Mem. at 33. Povetkin claims as damages
the purse he would have won had the fight taken place. Id. at 34. Thus,
the WOB Parties must show that the various breaches they assert by
Wilder – announcing the bout had been canceled, not traveling to
Moscow, fighting another boxer, and filing this action – were the
proximate cause of these damages.
We agree, as the WOB Parties argue, WOB Reply at 16-17, that

their burden is to show that Wilder’s breaches “‘were a substantial factor
in the sequence of responsible causation’ and the ‘injury was reasonably
foreseeable or anticipated as a natural consequence.’”
23
(SPA-30) (citation omitted). The District Court went on to hold that “there is no
evidence that would allow a jury to conclude that the WBC’s failure to reschedule the
Bout was influenced by Wilder’s purported breaches.” (SPA-32).
In appealing the District Court’s ruling, the WOB Parties maintain that they
should have been able to go to a jury with their entirely speculative argument that the
Wilder Parties improperly influenced the WBC to call off the May 21, 2016 fight and
not reschedule it. However, as the District Court correctly noted, there is no
competent proof in the record that the WBC postponed or cancelled the May 21 fight
because of undue pressure from the Wilder Parties. Rather, the proof is 180 degrees
to the contrary. Most notably, the WBC has repeatedly confirmed that it called off the
May 21 fight out of concern for the health and safety of the fighters and to conduct an
investigation in the wake of Povetkin’s positive test for Meldonium. For example:
First, on May 15, 2016, the WBC issued its initial announcement confirming
that the fight would not go forward on May 21, 2016 as scheduled:
The World Boxing Council is diligently addressing the positive

test result form the Clean Boxing Program for mandatory heavyweight
challenger Alexander Povetkin.
Keeping the priority of safety and also the principle of justice,

the WBC will continue the investigation into the case. Consequently,
the event scheduled for May 21 in Moscow is hereby officially
postponed.
(A-347) (emphasis supplied).

24
Second, the WBC’s subsequent rulings reiterated that it did not call off the May
21, 2016 fight because of pressure from Wilder. Thus, as the District Court pointed
out, the WBC issued an August 17, 2016 ruling again confirming that it had “‘called
the Bout off and reserved any further ruling until the ongoing investigation, inquiry
and evaluation process [of Povetkin] concluded.’” (SPA-32).
Third, at a July 17, 2016 inquiry meeting, the WBC reconfirmed that its
decision not to allow the May 21 fight to go forward was the result of Povetkin’s
positive test for Meldonium, not Wilder’s actions. Specifically, the following
exchange took place between counsel for the Wilder Parties and Mr. Mauricio
Sulaiman Salvidar, the WBC’s President:
MR. BURSTEIN: The next test was April 24th, was it?
MR. SULAIMAN: 27th.
MR. BURSTEIN: 27th, and that came back positive. And then there
was a subsequent test -- and then after the April 27th
test, the WBC made a decision on May 15th to, as
a result of that positive test, not to go forward
with the Povetkin/Wilder fight as scheduled.
MR. SULAIMAN: Correct.
(A-824) (emphasis supplied).
The WOB Parties also argued to the District Court that the Wilder Parties
forced the WBC’s hand by supposedly refusing to fly to Moscow no matter what the
25
WBC Ruled. However, the overwhelming testimony in the record confirms that after
Povetkin’s positive test for Meldonium was made public, the Wilder Team waited in
England to see what the WBC was going to do. (A-785, 786-87; A-800-03; and A-
809-11). Additionally, as the District Court pointed out, to adopt the WOB Parties’
argument, the trier of fact would have to conclude that the WBC repeatedly lied about
its reasoning for calling off the May 21 2016 fight: “no reasonable jury could indulge
in the speculation that ... the WBC falsely stated the reason the fight was being
postponed.” (SPA-31).
If the WOB had wanted to, it could have inquired of the WBC with regard to
its unsubstantiated theory of improper influence. Instead, it choose to remain wilfully
blind. This failure was also cited by the District Court: “The WOB Parties offer no
testimony from a representative of the WBC or anyone else that the reason given by
the WBC was not the real reason.” (SPA-31). Instead of introducing actual evidence
from the WBC, the WOB Parties relied on unsubstantiated hearsay contained in an
article written by a reporter located in New York, who the WOB Parties also never
bothered to depose, stating that the WBC had “little choice” but to postpone. This
unsubstantiated hearsay is too thin a reed to successfully defend against summary
judgment: “Rule 56(e) provides that affidavits in support of and against summary
judgment shall set forth such facts as would be admissible in evidence. Therefore,
26
only admissible evidence need be considered by the trial court in ruling on a motion
for summary judgment.” Presbyterian Church Of Sudan v. Talisman Energy, Inc., 582
F.3d 244, 264 (2d Cir. 2009) (internal quotation marks and citations omitted; italic
emphasis in original). In sum, it takes more than the WOB Parties’ guesswork to
defeat a motion for summary judgment: “The non-moving party may not rely on
conclusory allegations or unsubstantiated speculation.... [M]ere conjecture or
speculation by the party resisting summary judgment does not provide a basis upon
which to deny the motion.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)
(internal quotes and citations omitted).
B. The WOB Parties Fail To Demonstrate That The District Court’s

Proximate Cause Analysis Constituted Error, Let Alone Reversible Error
On appeal, the WOB Parties respond to the District Court’s finding about
proximate cause by arguing that they had no obligation to prove that the Wilder
Parties’ supposed repudiation proximately caused the claimed injury. As per the
WOB Parties, all they had to show was that Povetkin was ready, willing, and able to
perform. (WOB Brief, p. 35: “[t]he non-repudiating party must have been ‘ready,
willing and able to perform, and this is all the law requires.’”) (Citing Pesa v. Yoma
Dev. Grp., Inc., 18 N.Y.3d 527, 532 (2012)). The WOB Parties never made this
argument below and it should not be considered by this Court. Even worse, as the
District Court confirmed, the WOB Parties originally argued that “their burden is to
27
show that Wilder’s breaches ‘were a substantial factor in the sequence of responsible
causation’ and the ‘injury was reasonably foreseeable or anticipated as a natural
consequence.’” (SPA-30). But this is the very same definition of “proximate cause”
that the WOB Parties now disavow.4 This Court should not countenance the WOB
Parties taking one position about their burden of proof before the District Court, and
after the District Court adopts that position and uses it to dismiss their claims, coming
up with a brand new, unjustifiably lax standard on appeal.
Moreover, by quoting only a snippet of Pesa, the WOB Parties once again
misrepresent the governing law, this time in an effort to do away with their burden of
proof as to damages.5 Contrary to the WOB Parties’ portrayal, Pesa concerned the
principle that a party to a repudiated contract need not tender performance if it would
be futile to do so. As the relevant passage of Pesa reads when not excised to ribbons
in the WOB Brief: “when a contract has been repudiated, the non-repudiating party
4
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23–24 (2d Cir.
1990) (holding that “acts proximately cause a plaintiff’s injury if they are a substantial
factor in the sequence of responsible causation, and if the injury is reasonably
foreseeable or anticipated as a natural consequence.”) (citations omitted); see also
Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (citations omitted).
5
“[T]the burden of proof in establishing damages from lost profits is upon
the plaintiff.” Harbor Hill Lithographing Corp. v. Dittler Bros., 76 Misc. 2d 145, 145
(Sup. Ct., Nassau Co. 1973) (Citing Buyer v. Mercury Technical Cloth and Felt Corp.,
301 N.Y. 74 (1950).
28
need not actually tender performance. ... ‘Where one party to a contract repudiates it
and refuses to perform, the other party by reason of such repudiation is excused from
further performance, or the ceremony of a futile tender. He must be ready, willing and
able to perform, and this is all the law requires’”) (Quoting De Forest Radio Tel. &
Tel. Co. v. Triangle Radio Supply Co., 243 N.Y. 283, 283 (1926) (emphasis omitted).
The well-known legal principle that a party need not tender performance if futile
hardly excuses the WOB Parties from meeting their burden of proof that the Wilder
Parties’ alleged breach proximately caused their damages. In other words, even if the
Wilder Parties had repudiated, and they did not, the WOB Parties would have to prove
that the repudiation was the proximate cause of the fight not going forward.6 As the
District Court demonstrated in detail, the WOB Parties utterly failed to meet their
burden on this issue.
6
This Court has held that a party to a repudiated contract still must prove
that damages were proximately caused by the repudiating party:
CAVE failed to carry its burden . . . and consequently it cannot obtain damages
for USOA’s anticipatory repudiation. . . . CAVE also failed to meet its burden
of proving that USOA’s breach was the proximate cause whereby it lost its
franchise. . . . [R]efusal to award CAVE damages . . . was not error.
U.S. Overseas Airlines, Inc. v. Compania Aerea Viajes Expresos De Venezuela, S.A.,
246 F.2d 951, 952 (2d Cir. 1957) (citation omitted).
29
Fundamentally, even if the WOB Parties had not (a) argued a contrary position
to the District Court, and then (b) misconstrued the law, Povetkin was simply not
ready, willing, and able to perform. This is unquestionably so, because the WBC
called off the fight as a result of his positive test for meldonium. As the District Court
expressly held: “The only immediate reason that the Bout did not take place was that
the WBC postponed it in response to Povetkin’s test for a banned substance. Nothing
in the record suggests that any act of Wilder’s was a factor, let alone a substantial
factor, in the WBC’s decision.” (SPA-30-31).
Relatedly, the WOB Parties argue that Povetkin did not have to prove his ability
to perform in the future, because the time of performance was indefinite. (WOB
Brief, p. 35, citing Am. List Corp. v. U.S. News & World Report, Inc., 75 N.Y.2d 38,
44 (1989)). This principle is inapplicable here, because the timing of performance
under the Bout Agreement was not indefinite. Instead, the Bout Agreement expressly
set May 21, 2016 as the date of the fight. Povetkin cannot bootstrap indefiniteness
into the Bout Agreement because he was unable to perform on May 21, 2016 due to
his positive test for a banned substance.
The WOB parties also object that the District Court supposedly imposed an
additional requirement on Povetkin – that Wilder influenced the WBC not to
reschedule the bout. (WOB Brief, pp. 36-37 (citing SPA-32-33)). The WOB Parties
30
mis-frame the issue, considering that the District Court actually held that “even
drawing all reasonable inferences in the WOB Parties’ favor, a jury would be
compelled to find that the Bout did not go forward because of Povetkin’s positive drug
test and the WBC’s ensuing decisions in response to that positive test.” (SPA-33).
In other words, the District Court held that Povetkin proximately caused the
postponement, not Wilder.
Regardless, in making this argument, the WOB Parties principally rely upon
King World Prods., Inc. v. Fin. News Network, Inc., 660 F. Supp. 1381, 1386
(S.D.N.Y. 1987), aff’d sub nom. King World Prods., Inc. v. Fin. News Network, 834
F.2d 267 (2d Cir. 1987). The facts in King World bear no relation to ours. There, a
tenant entered into a sublease with a potential subtenant who immediately got cold
feet and argued that the signatory to the sublease lacked the authority to bind it. Here,
by way of contrast, Wilder was in England training for the fight when the news of
Povetkin’s positive test first broke. Nevertheless, the WOB Parties cite the King
World case because a condition of the sublease was that the landlord consent to the
sublease within 45 days, and the breaching subtenant argued that it would be
speculative to conclude that the landlord would have approved the sublease. The
court held that it would be unfair to saddle the tenant with that burden under the
circumstances of that case:
31
Accordingly, although King World is required to prove it was ready,

willing, and able to perform its part of the bargain, that proof need only
go to matters not created by FNN’s act of repudiation. King World has
met this burden by proving that it had already vacated the premises so
that FNN could move in, and by proving that it had forwarded the
sublease to the landlord for its approval prior to FNN’s repudiation.
King World Prods., Inc., 660 F. Supp. at 1387.
Povetkin’s reliance on King World is precisely backwards. In this case, the
District Court held that the fight did not go forward because of “Povetkin’s positive
drug test and the WBC’s ensuing decisions in response to that positive test.” (SPA-
33). Consequently, it was Povetkin who failed to prove that he was ready, willing,
and able to perform, and he then sought to pass off his failure onto Wilder through
sheer speculation. Moreover, as the WOB Parties read the King World case, the
landlord stands in the shoes of the WBC as the third-party whose approval was
required for performance. Yet in King World, the landlord was silent as to whether
it would have approved the sublease, because the subtenant immediately repudiated
it and even argued that the signatory acted without the requisite authority. Unlike
King World, the WBC has made it quite clear that it postponed the fight due to its
concern for the health and safety of the fighters and the need to perform an
investigation – not the Wilder Parties’ supposed breaches.
C. Alternative Grounds to Affirm
32
While the District Court’s ruling was limited to the question of proximate
cause, it acknowledged that the Wilder Parties may well not have breached at all:
“While there are arguments that none of these acts constitutes a material breach of the
Bout Agreement, we do not find it necessary to reach this question.” (SPA-28).
While we submit that it should not be necessary, if the Court does require alternate
grounds to affirm other than the question of proximate cause, it ought to find that the
WOB Parties failed to submit sufficient evidence for a reasonable trier of fact to
conclude that the Wilder Parties repudiated. The reasons are as follows:
First, the WOB Parties have argued that Wilder repudiated by stating publicly
that the bout was “cancelled” when he should have used the term “postponed.”
Stating that the fight was “cancelled” when there is no evidence that Wilder would
have refused to fight if the WBC ordered him to, hardly rises to the level of a material
breach. Further, the District Court held that it was Povetkin who proximately caused
the fight to be postponed. (SPA-33). Semantics aside, when Wilder said that the bout
was “cancelled,” the WBC had already called off the fight by its announcement of
May 15, 2016. (See A-814). Indeed, well before that, Povetkin had materially
breached by ingesting meldonium.7
7
Despite its ultimate conclusion that it did not constitute a breach of the
Bout Agreement, the District Court held that “[i]t has been conclusively determined
as a result of the jury trial in this matter that Povetkin ingested Meldonium after
(continued...)
33
The only alleged breach that the WOB Parties can identify that preceded May
15, 2016, the date when the WBC called off the fight, is a May 14, 2016 letter from
John Wirt, Esq., to the WBC. (A-1153-55). Once again, Mr. Wirt’s letter post-dated
Povetkin’s use of meldonium. Moreover, a letter from counsel articulating a client’s
position that the other party to a contract committed a breach is not a repudiation. See
Children of America (Cortlandt Manor), LLC v. Pike Plaza Assocs., LLC, 113 A.D.3d
583, 585 (2d Dep’t 2014) (“Here, the August 28, 2009, email message did not
constitute an anticipatory repudiation because it was not an unequivocal, definite, and
final expression of the plaintiff’s intention not to perform its obligations under the
lease.”).
Furthermore, Mr. Wirt’s letter cited to public claims by WOB’s principal,
Andrei Ryabinskiy, that Povetkin only had trace amounts of meldonium in his system,
which was supposedly residual from usage that preceded January 1, 2016. (A-1154).
The notion that the Wilder Parties had to remain silent about the consequences of
Povetkin’s positive test for meldonium while Mr. Ryabinskiy lobbied the WBC to
7
(...continued)
January 1, 2016.” (SPA-21). As shown above in POINT I(A) and the Initial Wilder
Brief, the District Court erred in concluding that Povetkin did not breach when he
ingested a banned substance.
34
have the fight go forward on May 21, 2016, or else repudiate the WBC Bout
Agreement, is not well-taken.
Second, the WOB Parties argue that Wilder repudiated by not immediately
jumping on a plane from England to Moscow after he learned that Povetkin had tested
positive for meldonium. It was entirely sensible for Wilder to delay his flight to
Moscow until the WBC announced the status of the bout. If Wilder had flown to
Moscow instead of waiting for the WBC to issue a decision, he would only have
ended up turning right around and flying back to the United States.
The WOB Parties also appear to claim that Wilder materially breached by not
traveling to Moscow to participate in “fight week” promotions in anticipation of the
fight. However, Wilder was only required to be in Moscow one week before the fight,
and Povetkin’s positive test was announced on May 13, 2016. Furthermore, Alex
Dombroff submitted a declaration stating that he had coordinated Wilder’s travel
schedule to ensure that he would be present in Moscow to participate in all fight week
events (see A-793) and the WOB Parties failed to submit any proof countering this
testimony. Thus, any supposed breach arising from Wilder’s not being present in
Moscow on May 14, 2016 – apparently to be available to participate in fight week
events that had not been scheduled for that day – was plainly not a material one.8
8
“Whether a failure to perform constitutes a ‘material breach’ turns on
(continued...)
35
Third, the WOB Parties argue that Wilder breached by entering into a bout
agreement to fight Chris Arreola. The Arreola fight did not constitute a breach
because, among other reasons, the WBC expressly approved it in the wake of
Povetkin’s positive test for meldonium.
Regardless, this is not a situation where Wilder’s entering into a bout agreement
to fight Arreola rendered it impossible to comply with his obligations under the Bout
Agreement. Until the WBC called off the fight, Wilder was contractually bound to
fight Povetkin on May 21, 2016. Wilder did not fight Arreola until July 16, 2016,
almost two months after the Wilder-Povetkin fight was supposed to take place.
Because Wilder’s alleged repudiation occurred after the time for performance set forth
in the Bout Agreement, it cannot constitute a repudiation. “It is well settled that an
anticipatory breach of a contract is one that occurs before performance by the
breaching party is due.” Kaplan v. Madison Park Group Owners, LLC, 94 A.D.3d
616, 618 (1st Dep’t 2012) (citations omitted; emphasis supplied); see also Condor
Funding, LLC v. 176 Broadway Owners Corp., 147 A.D.3d 409, 411-12 (1st Dep’t
8
(...continued)
several factors, such as the absolute and relative magnitude of default, its effect on the
contract’s purpose, willfulness, and the degree to which the injured party has
benefitted under the contract.[] For a breach to be material, it must go to the root of
the agreement between the parties.” Process Am., Inc. v. Cynergy Holdings, LLC, 839
F.3d 125, 136 (2d Cir. 2016) (applying New York law) (internal quotation marks and
citations omitted).
36
2017) (rejecting defendant’s anticipatory repudiation argument because there was “no
record evidence that plaintiff declared its intention not to perform its contractual duty
to pay defendant for the provision of heat to plaintiff’s building prior to the time that
payment was due”) (emphasis supplied)).
Fourth, the WOB Parties argue that the act of filing the Wilder Action
constituted a repudiation. Here again, the Wilder Parties filed suit on June 13, 2016
(see A-4-5), which was after the May 21, 2016 fight date. Further, in the interim, the
WOB Parties’ counsel had already sent John Wirt, Esq. a letter on June 1, 2016,
threatening to seek $2.5 million in liquidated damages if Wilder did not immediately
consent to the release of the escrow funds. (A-729-30). Thus, if the WOB Parties are
correct that the Bout Agreement remained in limbo after the WBC called off the May
21, 2016 fight, then the June 1, 2016 letter from the WOB Parties’ counsel was a prior
repudiation, considering that the Bout Agreement expressly provides that Wilder was
entitled to have his purse held in escrow.
D. A Remand For Damages Is Not Required
The WOB Parties argue that the Court should remand for calculation of
damages. As shown above, this Court ought to affirm the District Court insofar as it
dismissed the WOB Parties’ claims for breach of the Bout Agreement. Therefore, a
remand on this issue is not warranted.
37
Additionally, the damages showing made by WOB in particular was inadequate
as a matter of law. To summarize, WOB produced (a) a spreadsheet that was a
summary exhibit containing a column denominated “Documentation,” but that
underlying documentation was not produced in violation of Fed.R.Evid. 1006 (see A-
943-58), moreover, (b) the WOB’s damages spreadsheet is hearsay, which (c) plainly
does not satisfy the business records exception to the hearsay rule (see Fed.R.Evid.
803(6)), considering that (d) WOB’s own agent admitted that he created the
spreadsheet in order to use it in this litigation instead of during the ordinary course of
business (A-939, ¶ 2), and (e) the spreadsheet is also inadmissible under the best
evidence rule. (See Fed.R.Evid. 1002). But even crediting this palpably inadmissable
evidence, it actually showed that the WOB would have lost money if the Wilder-
Povetkin fight had taken place. (Compare A-943-58 with A-707, § 5 and A-1850-51,
¶¶ 3, 5). WOB cannot collect non-existent lost profits.
Nevertheless, if this Court does reverse the District Court’s dismissal of the
WOB Parties’ claim for breach of the Bout Agreement, we agree that a remand for the
calculation of damages would be an appropriate course. The District Court has not
had an opportunity to rule on the question of the WOB Parties’ alleged damages
because it dismissed that claim.
E. The District Court’s Dismissal Of the Good Faith And Fair Dealing Claim
With Respect to the Bout Agreement Should Be Affirmed As Unopposed
38
The District Court granted the Wilder Parties’ motion for summary judgment
dismissing the WOB Parties’ claim that the Wilder Parties breached the implied
covenant of good faith and fair dealing with respect to the Bout Agreement. (SPA-
35). In their Brief, the WOB Parties do not challenge this ruling, and therefore the
Wilder Parties do not address it in this Brief. Because the WOB Parties did not
challenge the District Court’s ruling on this point in their initial Brief, they should not
be permitted to do so on reply, and this Court should affirm the District Court’s ruling
as unopposed.
POINT III
THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S

DISMISSAL OF THE WILDER PARTIES’ CLAIM FOR BREACH
OF THE ESCROW AGREEMENT
In contrast to the Bout Agreement, the WOB Parties did not file a claim for
breach of the covenant of good faith and fair dealing with regard to the Escrow
Agreement. (See SPA-33: “WOB argues that there was a breach of the implied
covenant and good faith both with respect to the ... Escrow Agreement ..., even though
their Amended Answer makes this counterclaim only with respect to the Bout
Agreement[.]”) On appeal, the WOB Parties limited their arguments to the District
Court’s dismissal of their claim for breach of the covenant of good faith and fair
dealing with respect to the Escrow Agreement, and made no argument in opposition
39
to the District Court’s dismissal of their claim for direct breach of the Escrow
Agreement. (See WOB Brief at POINT IV and passim). Accordingly, this Court
should affirm the District Court’s dismissal as to the direct claim for breach of
contract as unopposed, and affirm with regard to the good faith and fair dealing claim
as, in effect, non-existent. See Chem One, Ltd. v. M/V RICKMERS GENOA, 502 F.
App’x 66, 74 (2d Cir. 2012) (holding in part that “[b]ecause Rickmers failed timely
to assert [his] claim in opposition to summary disposition in the district court, [the
court] decline[s] to address the claim for the first time on appeal.”)
In terms of the merits of WOB’s hypothetical covenant of good faith and fair
dealing claim, the District Court correctly held that the Escrow Agreement gave the
Wilder Parties the “almost unfettered authority” to object to the disbursement of
escrowed funds pending a litigation. (SPA-40-41). Moreover, as the District Court
also correctly held: “the only purpose of the Escrow Agreement was to ensure
payment to Wilder of the money he was due under the Bout Agreement[.]” (SPA-41).
Therefore, considering that the May 21, 2016 fight was, at a minimum, postponed due
to Povetkin’s positive test for a banned substance, “there were certainly non-frivolous
arguments that Povetkin had breached[.]” (SPA-40). Consequently, it was
objectively reasonable for the Wilder Parties to invoke their “almost unfettered”
40
authority to have the escrow agent hold the property in escrow pending a litigation to
determine the parties’ respective rights.9
The WOB Parties are incorrect in claiming that the District Court failed to
recognize the distinction between objective and subjective reasonableness. The
District Court addressed it, and acknowledged that summary judgment is often
inappropriate when subjective good faith is at issue. (SPA-38). However, the District
Court properly held that summary judgment was justified here. The Wilder Parties
came forward with a wealth of evidence supporting their good faith: “evidence in the
record indicates that the Wilder Parties believed at the time that they were validly
exercising their contractual rights.” (SPA-41). In contrast, the WOB Parties offered
nothing but rank speculation that the Wilder Parties did not act in good faith. (SPA-
41: “the WOB Parties have pointed to no subjective evidence showing ‘malevolent’
intent on the part of the Wilder Parties.”)
Because the WOB Parties failed to come forward with any evidence of bad
faith, dismissal on summary judgment was appropriate. See also Barbara v.
9
The WOB Parties’ binary reading of the Escrow Agreement – that the
escrow agent had to either return the monies to WOB if there was no fight, or pay it
to Wilder if there was one – is impossible to reconcile with the parties’ unfettered
authority to direct the escrow agent to hold the property in escrow pending a litigation.
Under the WOB Parties’ reading, there was no conceivable non-frivolous litigation
that could justify directing the escrow agent to refrain from disbursing the property.
41
MarineMax, Inc., 577 F. App’x 49, 51 (2d Cir. 2014) (holding that Summary
Judgment for MarineMax was appropriate “because there was no genuine dispute of
material fact as to whether MarineMax breached the duty of good faith. . . . [A]
rational trier of fact could not find that MarineMax acted in bad faith.”). See also
First Nat. Bank of Bos. v. Manufacturers Hanover Tr. Co., No. 90 CIV. 7569 (LBS),
1991 WL 125188, at *5 (S.D.N.Y. July 2, 1991), supplemented, No. 90 CIV. 7569
(LBS), 1991 WL 258800 (S.D.N.Y. Nov. 26, 1991):
When questions of “good faith and other subjective feelings play

dominant roles,” the Second Circuit [closely scrutinizes] dispositive
motions[, but even with] state of mind [at] issue . . . summary judgment
can [still] be granted. If the allegations amount to nothing more than
speculation and conjecture, after ample opportunity to engage in relevant
discovery, a summary judgment motion may be granted.
If this Court reverses the District Court with respect to the Wilder Parties’ claim
for breach of the Bout Agreement, they will be entitled to the escrow monies: “the
only purpose of the Escrow Agreement was to ensure payment to Wilder of the money
he was due under the Bout Agreement[.]” (SPA-41). Wilder’s purse was his
compensation for participating in the Bout, and WOB covenanted to “make available
the services of [Povetkin] to participate in the Bout.” (A-63). However, if this Court
affirms the District Court, there is no mechanism to direct the release of the escrowed
funds to WOB, because, despite the District Court’s ambiguous holding on the issue,
WOB failed to assert a claim for declaratory judgment, and its claims for breach were
42
dismissed. Under those circumstances, the Court should remand for further
proceedings.
POINT IV
THE COURT SHOULD NOT VACATE THE JURY VERDICT
This Court should not vacate the jury verdict. The WOB Parties made a motion
post-trial for judgment as a matter of law or a new trial, and they rehash the same
arguments here. In denying the WOB Parties’ post-trial motion, the District Court
convincingly debunked their arguments, finding that “the Court is now faced with a
defeated combatant unwilling to accept a sound jury verdict.” (A-582). The same
holds true with respect to the WOB Parties’ appeal of the jury verdict.
The WOB Parties face a heavy burden in seeking to overturn a jury verdict:
“Absent fundamental error, [such as an erroneous jury instruction,] we are loath to
overturn a jury verdict in a civil case.” Catlin Specialty Ins. Co. v. QA3 Fin. Corp.,
629 F. App’x 127, 129 (2d Cir. 2015) (citation omitted); see also Campbell v. Cellco
P’ship, No. 10 CIV. 9168, 2012 WL 3240223, at *4 (S.D.N.Y. 2012) (holding in part
that “complaints [about evidentiary rulings did not provide] a compelling basis to
overturn the jury verdict.”).
The WOB Parties’ gripes are far removed from any legitimate prejudice.
A. The WOB Documents Were Properly Excluded
43
The WOB Parties claim that the District Court erroneously excluded evidence
that was so prejudicial as to warrant a new trial. However, the documents were
appropriately excluded, and even if they were not, any resulting prejudice was de
minimis.
First, the WOB Parties argue that they should have been allowed to introduce
the WBC’s August 2016 ruling that supposedly exonerated Povetkin, because the
WBC could not determine scientifically whether Povetkin took Meldonium when it
was banned. The document was properly excluded. Even if evidence is relevant, a
court may still exclude it “if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403. The WBC’s August 2016 ruling would have been
completely confusing, because the WBC subsequently issued an October 2016 ruling
that explicitly deferred determination of Povetkin’s meldonium use to this proceeding,
and “states that the WBC [August 2016] ruling was not intended to convey, and
should not be construed as conveying, a conclusion about whether Mr. Povetkin did
or did not take Meldonium after it became a banned substance on January 1, 2016.”
(A-856). Therefore, admitting the document into evidence would also have resulted
in an extensive mini-trial about the meaning of the WBC’s conflicting rulings, and
44
what they were based upon, etc. Notably, the WOB Parties wanted to introduce this
document to bolster their own expert’s testimony, giving rise to a serious risk that the
jury would “accept the judgment of an expert in place of its own.” United States v.
Sorondo, 845 F.2d 945, 949 (11th Cir. 1988).
Second, the WOB Parties point to two notices from WADA, dated April 2016
and June 2016, respectively. These WADA notices were completely irrelevant to the
only question before the jury: whether Povetkin ingested Meldonium in 2016. When
Povetkin’s positive urine sample was given, on April 27, 2016, WADA had a “no
tolerance” policy regarding Meldonium detection, unless it could be proven that the
athlete did not ingest it in 2016. (A-1039-41).
Accordingly, the question to be decided by the finder of fact at the February
2017 trial was not whether Povetkin had a low concentration of Meldonium in his
urine such that discipline might have been stayed under the April 2016 notice, or that
he would not have violated the WADA ban following the June 2016 notice. Rather,
the question was whether Povetkin ingested Meldonium, in any amount, on or after
January 1, 2016. Therefore, the evidence was irrelevant and properly excluded
pursuant to Rule 402 of the Federal Rules of Evidence. Furthermore, because the
WADA Notices did not determine an issue of fact or help explain other relevant
evidence, they were appropriately excluded under Rule 702 of the Federal Rules of
45
Evidence. Instead, the notices would have been highly confusing to the jury, as the
District Court correctly held. (SA-314).
Third, the District Court appropriately rejected the WOB Parties’ request for
a new trial based on a WADA Notice released in May 2017 – i.e, months after the
trial. This notice provided that as of September 1, 2017, urine samples with less than
100 ng/ml of meldonium should not be reported. The timeline is dispositive, and the
District Court was right to rule that “[t]he Bout Agreement was executed in April,
2016 under 2016 WADA standards. This document does not provide a basis for a
new trial.” (A-598, n. 7).
B. The Testimony of Dr. Butch, Who Was The Director Of The UCLA Lab,
Was Proper
The WOB Parties object somewhat bizarrely that Dr. Butch’s expert testimony
“sounded like” a fact witness when he discussed the UCLA Lab’s testing procedures.
(WOB Brief, p. 51). Of course, this Court “has held that a witness offering ‘dual
testimony,’ i.e., testifying as both an expert and fact witness, ‘is not objectionable in
principle.’” United States v. Stanley, No. 3:15-CR-198 (JAM), 2016 WL 7104825,
at *2 (D. Conn. Dec. 4, 2016) (quoting United States v. Feliciano, 223 F.3d 102, 121
(2d Cir. 2000)). Nor can the WOB Parties identify anything legitimately
objectionable about Dr. Butch’s testimony.
46
As the Lab Director, Dr. Butch clearly had the competence to discuss its testing
procedures, and to opine about documents that would qualify as business records
under Fed.R.Evid. 803(6). Indeed, during the trial, the WOB Parties did not object to
the admission of the UCLA documents into evidence. (SA-580; SA-562). Further,
it was appropriate for Dr. Butch to rely on hearsay as an expert witness. “Under Rule
703, experts can testify to opinions based on inadmissible evidence, including hearsay,
if experts in the field reasonably rely on such evidence in forming their opinions.”
United States v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008) (Citing Fed.R.Evid. 703)
(some citations and internal quotes omitted). “Trained experts commonly extrapolate
from existing data.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Nonetheless, the WOB Parties argue that because Dr. Butch did not push the
print button himself for Povetkin’s tests, his entire testimony should have been
excluded as unfairly prejudicial, even though they never moved in limine to exclude
it. “However, an expert may rely on data that she did not personally collect. The
Federal Rules of Evidence specifically provide that an expert may rely on facts or data
‘perceived by or made known to the expert at or before the hearing.’” Gussack Realty
Co. v. Xerox Corp., 224 F.3d 85, 94–95 (2d Cir. 2000) (quoting Fed.R.Evid. 703).
There is no case law on point to support the WOB Parties’ position, and so they
rely upon inapposite authority dealing with a very specific problem that can occur in
47
criminal cases, when agents testify as expert witnesses about drug code, and end up
submitting affirmative albeit unsupported proof that was necessary for a conviction.
(See WOB Brief, pp. 52-53, citing United States v. Dukagjini, 326 F.3d 45 (2d Cir.
2003) (“We have been aware of the heightened risk of allowing case agents to testify
as experts, but nevertheless have permitted such testimony.”) (Id., at 56) (citations
omitted)); and United States v. Mejia, 545 F.3d 179 (2d Cir. 2008) (“This testimony
strongly suggests that Alicea was acting not as an expert but instead as a case agent,
thereby implicating our warning in Dukagjini – a warning the Government appears not
to have heard or heeded.”) (Id., at 198). Nonetheless, even while acknowledging the
existence of this unique risk in criminal cases, both Dukagjini and Mejia confirm that
expert testimony from case agents is routinely admitted into evidence at trials.
Moreover, while Dukagjini found that some of the expert testimony admitted at trial
should have been excluded, the error was harmless. (Id., at 49).10
10
On the other hand, the improper testimony in Meijia was not harmless,
because the case agent had testified that the gang accused of racketeering, MS-13,
actually committed the predicate acts of murder: “We find especially disturbing the
portion of Alicea’s testimony that essentially summarized the results of the Task Force
investigation ... that MS–13 had committed between eighteen and twenty-three
murders since 2000. * * * The Government cannot take a shortcut around its
obligation to prove murder beyond a reasonable doubt just by having an expert
pronounce that unspecified deaths of eighteen to twenty-three persons have been
homicides committed by members of MS–13.” Mejia, 545 F.3d at 195–96.
48
C. The WOB Parties’ Own Counsel Were Responsible For The Discovery
Delays That They Object To On Appeal
The WOB Parties object that Arnold & Porter Kay Scholer, with its hundreds
of attorneys and vast resources, could not adequately prepare for this one-issue trial.
As the District Court pointed out, the WOB Parties agreed to the February 6, 2017
trial date at a September 26, 2016 conference. (A-584). Furthermore, WOB’s counsel
originally anticipated that the February 6 trial would encompass multiple claims for
breach of two separate contracts and defamation, and as per the District Court: “World
of Boxing ... agreed to limit the trial to single issue of fact, which undeniably
narrowed Counsel’s responsibilities in preparing for trial.” (A-597).
Nevertheless, the WOB Parties argue that their lawyers were hamstrung in
trying the case because Wilder stalled the production of important expert disclosures
from UCLA. As the District Court noted, this position is inconsistent with the central
premise of the WOB Parties’ Rule 50 motion: “the Court agrees with Wilder: it is an
inherent contradiction for World of Boxing to allege it suffered severe prejudice by
a trial schedule, and at the same time argue that it produced overwhelming proof
warranting judgment as a matter of law.” (A-597).
The WOB Parties’ argument is also fundamentally hypocritical, considering
that Hon. Gabriel W. Gorenstein ruled that it was the WOB Parties’ attorneys who
were responsible for the delays in the UCLA disclosure. (See SA-186 at n. 1: “the
49
Court has found that WOB rather than the Wilder parties bears responsibility ... for
the fact that this data was disclosed as of January 23 and not earlier. * * * Thus, the
WOB parties have created whatever inconveniences have resulted from the current
situation ....”). Hon. Andrew L. Carter, Jr. further agreed with Judge Gorensrein, and
rejected WOB’s characterization of the record: “The Court disagrees with World of
Boxing’s recitation of the record regarding late productions of discovery. Counsel’s
unwillingness to cooperate with the Wilder parties during discovery contributed to the
late production of data from the UCLA lab, as Judge Gorenstein pointed out.” (A-
597). The WOB Parties’ upset over this entirely self-inflicted wound should fall on
deaf ears.
In terms of the claimed prejudice, it was the same issue discussed above in
POINT I(D), namely, the supposed “stunning admissions” that UCLA cover letters
to VADA omitted the numeric code corresponding to tests for meldonium. However,
as confirmed by the District Court, UCLA plainly did test for meldonium, considering
that the WOB Parties’ own expert used the data from those tests to argue that the April
7, 8, and 11 samples were actually positive for meldonium. (A-589). In all events,
the WOB Parties were not deprived of the chance to make their case to the jury, and
instead argued that
you can see with your own eyes, when you go back and we saw it in the
evidence, there was 1001, 1003, 1004, 1006, there was no 1002. And I
50
asked Dr. Butch: Where is 1002 in this record? And he agreed that it
wasn’t listed there. It was omitted from the report. Metabolic
modulators by mass spectrometry was omitted from the April 7th test
report.
(See SA-1078-79). The jury simply rejected this specious argument when it rendered
a verdict against Povetkin.
The WOB Parties lamely posit that without the subject discovery, they could
never have uncovered Dr. Butch’s supposed lack of knowledge about what went on
at UCLA. Dr. Butch’s role as the Director of the UCLA Lab was not an industrial
secret. The WOB Parties deposed Dr. Butch at length, and they had every opportunity
to ask him about his role at UCLA. If the WOB Parties’ attorneys did not pose the
appropriate questions, they have only themselves to blame.
D. The Alleged Attorney Misconduct Does Not Warrant A New Trial
As they did on their Rule 59(a) motion, the WOB Parties once again claim that
they should be entitled to a new trial based on alleged misconduct during summation.
In denying the Rule 59(a) motion, the District Court held:
In a kitchen sink approach, World of Boxing alleges that Wilder:

misrepresented the record, denigrated Povetkin’s credibility, disregarded
the Court’s evidentiary rulings, attacked Counsel for World of Boxing,
misstated the burden of proof, and referred to Povetkin’s trainer as a
missing witness. WOB Mem. at 38-44. The Court has reviewed the
record and finds World of Boxing’s recitation of the record inaccurate
and arguments without merit. To the extent that the Wilder Parties
engaged in the behavior alleged, World of Boxing failed to object or the
Court issued a proper instruction to the jury.
51
(A-597-98).
The District Court’s findings were entirely justified based on the record:
First, the WOB Parties claim that counsel falsely accused Povetkin of trying
to change his deposition testimony. But Povetkin admitted that he signed an errata
sheet on February 5, 2017, the day before trial, which materially changed his
testimony. (SA-876). Further, upon review of an audiotape of the deposition,
Povetkin’s own attorney confirmed that the change was not, as Povetkin had
previously claimed under oath, due to a translation error. (SA-716). The District
Court also specifically instructed the jury at this juncture that it was their recollection
that controlled. (SA-1117).
Second, the WOB Parties contend that counsel improperly expressed his
personal opinion that Povetkin was dishonest. But a fair reading of the transcript
reveals that counsel was arguing that Povetkin’s testimony was not credible in light
of the evidence at trial. (SA-1117-18). That is appropriate argument, and any error
was harmless.11 Nor did the WOB Parties’ attorney object to this question.12 WOB
11
See United States v. Truman, 581 Fed.Appx 26 (2d Cir. 2014) (In
summation, the prosecutor challenged the veracity of defendant’s version of the facts,
and the Court found that “when the defense puts forward a theory of the case, the
prosecution is entitled to argue that the defense failed to support its own theory with
credible evidence,” and that “[i]t was acceptable for the Government to argue that
Truman had failed to support his own theory of the case ...”) (Id. at 30-31). See also
(continued...)
52
is incorrect in claiming that Wilder’s counsel improperly raised Povetkin’s motive to
falsify. Rather, the arguments about the errata sheet concerned Povetkin’s willingness
to change his testimony without any legitimate basis, and the arguments about
credibility dealt with the inconsistency between Povetkin’s denial that he took
Meldonium in 2016, and the overwhelming scientific evidence that he did.
Third, there were no unsubstantiated attacks on the credibility of WOB’s
counsel about discovery proceedings. The District Court admitted Dr. Butch’s
testimony that “the other side was unwilling to allow” him to get the vial numbers for
Povetkin’s negative tests that were necessary for UCLA to access the testing data and
make the supplemental disclosure. But it only did so after the WOB Parties unfairly
attacked Dr. Butch for not including that (previously unavailable) information in his
first report. (SA-765).13 Accordingly, Wilder’s attorney was making a fair comment
11
(...continued)
Selzer v. New York City Transit Authority, 100 A.D.3d 157 (1st Dep’t 2012) (In
summation, counsel pointed out the insufficient and contradictory nature of plaintiff’s
testimony, and the Court held that “his summation was directed at the credibility of
the plaintiff’s testimony, and was not an interjection of the counsel’s own view of the
facts.”)
12
The record clearly shows that WOB’s counsel only objected when
Wilder’s attorney began discussing Povetkin’s vitamins, and at the sidebar, the focus
of the objection was an argument Wilder’s counsel intended to make about the trainer.
(SA-1118-19).
13
This conduct gave rise to the District Court’s repeated findings that
(continued...)
53
on the evidence in the record. But nevertheless, the Court granted the WOB Parties’
request for a curative instruction on this issue (SA-1194), and there was no prejudice
regarding the discovery proceedings.14
Fourth, Wilder’s counsel did not make blatantly incorrect statements about the
burden of proof. Wilder’s attorney never argued that the WOB Parties had the burden
of proof, but simply pointed to an absence of proof supporting their claim about when
Povetkin supposedly took Meldonium. Further, the WOB Parties did not object to a
single one of these supposedly blatantly incorrect statements. (See SA-1129, 1138,
1127, 1108).15 Moreover, the assertion that Wilder’s counsel was admonished on this
13
(...continued)
WOB’s counsel was responsible for the delays in the production of certain UCLA
discovery. (See supra). Wilder had asked Povetkin to consent to the release of the
vial numbers for his negative tests, without which UCLA could not access the
corresponding data because the tests are conducted blind. But tellingly, Povetkin
refused to give his consent, which forced Wilder to make a motion that ultimately
secured the information pursuant to a court order. Despite this procedural history, the
WOB Parties have the chutzpah to blame Wilder for the delay in UCLA’s production.
14
See In re Fosamax Products Liability Litig., 742 F. Supp. 2d 460, 484
(S.D.N.Y. 2010) (citing CSX Transp. Inc. v. Hensley, 556 U.S. 838 (2009) (“The jury
system is premised on the idea that rationality and careful regard for the court’s
instructions will confine and exclude jurors’ raw emotions . . . . [J]uries are presumed
to follow the court’s instructions.”); United States v. Whitten, 610 F.3d 168, 191 (2d
Cir. 2010) (“We presume that juries follow instructions . . . .”)).
15
“When the complaining party fails to object at trial to statements made
during summation, the court will only grant a new trial when the ‘error is so serious
and flagrant that it goes to the very integrity of the trial.’” Hart v. Consol. Rail Corp.,
(continued...)
54
issue is simply untrue. Rather, the District Court’s comments about the WOB Parties
not having a burden of proof occurred during a discussion concerning an argument
that Wilder’s counsel wanted to make about the WOB Parties objecting to the release
of the vial numbers for Povetkin’s negative samples. (SA-1133). Additionally, the
District Court gave the jury thorough and clear instructions on the burden of proof,
and specifically advised that “[i]f an attorney states a legal principle that differs from
what I state to you in my instructions, it is my instructions that you must follow.”
(SA-1189).
Fifth, while the Wilder Parties disagreed with the District Court’s rulings on
the missing witness issue, the most that the WOB Parties can actually point to is that
a posterboard with a number of questions on it – not just “Where is Mr. Povetkin’s
Trainer?” – was left in front of the jury for a few seconds. In fact, the supposed proof
that a juror saw it is supported by nothing but the personal impression of Povetkin’s
attorney. (See WOB Brief, p. 61, citing to Dkt. No. 260, which is Mr. Yalowitz’s own
declaration). Nevertheless, over the Wilder Parties’ objection (SA-1187), Povetkin
got a very strong curative instruction on this issue. (SA-1201). There was simply no
prejudice.
15
(...continued)
No. 96 Civ. 1769, 1998 WL 865572, at *2 (N.D.N.Y. Dec. 9, 1998) (Sculin, J.)
(quoting Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 51 (2d Cir.1998)).
55
CONCLUSION
WHEREFORE, for the foregoing reasons, as well as those set forth in the
accompanying submissions, and based upon all prior proceedings heretofore had
herein, this Court should: (a) grant the Wilder Parties’ appeal; (b) deny the WOB
Parties’ cross-appeal; together with (c) such other and further relief as this Court
deems just and proper.
Dated: New York, New York

January 22, 2019
Respectfully submitted,
JUDD BURSTEIN, P.C.
By: /s/ Peter B. Schalk

Peter B. Schalk
56
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limit of Local Rule 28.1.1(a)
because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this
document contains 13,931 words, as determined by Corel WordPerfect X7.
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this
document has been prepared in a proportionally spaced typeface using Corel
WordPerfect X7 in 14-point Times New Roman font.
Dated: New York, New York

January 22, 2019
JUDD BURSTEIN, P.C.
By: /s/ Peter B. Schalk, Esq.

Judd Burstein, Esq.
Peter B. Schalk, Esq.
5 Columbus Circle, Suite 1501
New York, New York 10019
(212) 974-2400
Attorneys for the Wilder Parties

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18-1543-cv L , 18-1567-cv(XAP)

Case 18-1543, Document 85, 01/22/2019, 2479798, Page1 of 64

DEONTAY WILDER, DIBELLA ENTERTAINMENT, INC,

WORLD OF BOXING LLC, ALEXANDER POVETKIN,

REPLY BRIEF FOR PLAINTIFFS-COUNTER-DEFENDANTS-

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

THE WOB PARTIES HAVE FAILED TO REBUT THE WILDER

A. THE WBC’S DISCRETION CANNOT NULLIFY

B. THE WOB PARTIES FAIL TO ESTABLISH

C. THE WOB PARTIES’ MISCELLANEOUS ARGUMENTS

D. THE WOB PARTIES’ ARGUMENT THAT THE JURY

THE WOB PARTIES FAIL TO ESTABLISH THAT THE DISTRICT

A. THE DISTRICT COURT CORRECTLY HELD THAT NO

B. THE WOB PARTIES FAIL TO DEMONSTRATE THAT

C. ALTERNATIVE GROUNDS TO AFFIRM . . . . . . . . . . . . . . . . . . 33

D. A REMAND FOR DAMAGES IS NOT REQUIRED . . . . . . . . . . . 38

E. THE DISTRICT COURT’S DISMISSAL OF THE GOOD

THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S

THE COURT SHOULD NOT VACATE THE JURY VERDICT . . . . . . . . . . . . 44

A. THE WOB DOCUMENTS WERE PROPERLY EXCLUDED . . . 44

B. THE TESTIMONY OF DR. BUTCH, WHO WAS THE

C. THE WOB PARTIES’ OWN COUNSEL WERE RESPONSIBLE

D. THE ALLEGED ATTORNEY MISCONDUCT DOES

AllGood Entm’t, Inc. v. Dileo Entm’t & Touring, Inc.,

Barbara v. MarineMax, Inc.,

Campbell v. Cellco P’ship,

Catlin Specialty Ins. Co. v. QA3 Fin. Corp.,

Charles O. Finley & Co. v. Kuhn,

Chem One, Ltd. v. M/V RICKMERS GENOA,

Children of America (Cortlandt Manor), LLC v. Pike Plaza Assocs.,

Condor Funding, LLC v. 176 Broadway Owners Corp.,

Crouch v. Nat’l Ass’n For Stock Car Auto Racing, Inc.,

Emelianenko v. Affliction Clothing,

First Nat. Bank of Bos. v. Manufacturers Hanover Tr. Co.,

Futterman Indus., Ltd. v. Imptex Int’l Corp.,

Gen. Elec. Co. v. Joiner,

Gussack Realty Co. v. Xerox Corp.,

Hart v. Consol. Rail Corp.,

Harbor Hill Lithographing Corp. v. Dittler Bros.,

Hecht v. Commerce Clearing House, Inc.,

In re Fosamax Products Liability Litig.,

Inryco, Inc. v. Parsons & Whittemore Contractors Corp.,

Kaplan v. Madison Park Group Owners,

King World Prods., Inc. v. Fin. News Network, Inc.,

King World Prods., Inc. v. Fin. News Network,

Barbara v. MarineMax, Inc.,

Pesa v. Yoma Dev. Grp., Inc.,

Presbyterian Church Of Sudan v. Talisman Energy, Inc.,

Process Am., Inc. v. Cynergy Holdings, LLC,

Rothstein v. UBS AG,

Selzer v. New York City Transit Authority,

U.S. Overseas Airlines, Inc. v. Compania Aerea Viajes

United States v. Dukagjini,

United States v. Feliciano,

United States v. Mejia,

United States v. Sorondo,

United States v. Stanley,

United States v. Truman,

United States v. Whitten,

Watts v. Columbia Artists Mgmt. Inc.,

Wilder v. World of Boxing LLC,

World of Boxing LLC v. King,

STATUTES AND OTHER AUTHORITIES

Fed.R.Evid. 803(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38-39, 47

Plaintiffs/Counter-Defendants-Appellants/Cross-Appellees Deontay Wilder

of their appeal, and (b) in opposition to the cross-appeal of Defendants/Counter-

Plaintiffs World of Boxing LLC (“WOB”) and Alexander Povetkin (“Povetkin”)