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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK


Jon Jones, Gina Carano, Frankie Edgar, Matt
Hamill, Brian Stann, Zuffa, LLC d/b/a Ultimate
Fighting Championship, Don Lilly, Shannon
Miller, Danielle Hobeika, Beth Hurrle, Donna
Hurrle, Steve Kardian, Joseph Lozito, Erik
Owings, Chris Reitz, and Jennifer Santiago,
Plaintiffs,
-against-
Eric T. Schneiderman, in his official capacity as
Attorney General of the State of New York,
Dennis Rosen, in his official capacity as
Commissioner and Chairman of the New York
State Liquor Authority, and Jeanique Green, in
her official capacity as Commissioner of the
New York State Liquor Authority,
Defendants.






No. 11 Civ. 8215 (KMW)(GWG)



PLAINTIFFS REPLY IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT ON COUNTS THREE
AND EIGHT OF THE SECOND AMENDED COMPLAINT







MORRISON & FOERSTER LLP

Jamie A. Levitt
Jonathan C. Rothberg
250 West 55th Street
New York, New York 10019-9601
Phone: 212.468.8000
jlevitt@mofo.com
jrothberg@mofo.com

Attorneys for Plaintiffs


Barry Friedman
40 Washington Square South
Room 317
New York, New York 10014-1005
Phone: 212.998.6293
barry.friedman@nyu.edu

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TABLE OF CONTENTS

Page

I. THIS CASE IS RIPE FOR SUMMARY JUDGMENT ..................................................... 1
II. SECTION 8905-a IS VAGUE UNDER THE NOTICE PRONG ...................................... 2
A. A Person of Ordinary Intelligence Would Think 8905-a Says Exempt
Organizations Can Sanction MMA ......................................................................... 3
B. A Person of Ordinary Intelligence Would Not Read 8905-a to Permit Only
Long Recognized, Traditional, or Single Discipline Martial Arts ............... 4
III. THE STATES ENFORCEMENT OF 8905-a HAS BEEN ARBITRARY OR
DISCRIMINATORY .......................................................................................................... 8
IV. CONCLUSION ................................................................................................................. 11

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TABLE OF AUTHORITIES

Page(s)

CASES
33 Seminary LLC v. City of Binghamton,
2013 WL 2446306 (N.D.N.Y. June 5, 2013) .............................................................................7
Adler v. Menifee,
293 F. Supp. 2d 363 (S.D.N.Y. 2003)........................................................................................4
Anderson v. Morrow,
371 F.3d 1027 (9th Cir. 2004) ...............................................................................................2, 3
Bass Plating Co. v. Town of Windsor,
639 F. Supp. 873 (D. Conn. 1986) .........................................................................................8, 9
Chatin v. Coombe,
186. F.3d 82 (2d Cir 1999).......................................................................................................11
Derby v. Town of Hartford,
599 F. Supp. 130 (D. Vt. 1984)................................................................................................11
Farrell v. Burke
449 F.3d 470 (2d Cir. 2006).....................................................................................................10
Fed. Ins. Co. v. SafeNet, Inc.,
817 F. Supp. 2d 290 (S.D.N.Y. 2011)........................................................................................1
Grayned v. City of Rockford,
408 U.S. 104 (1972) ...................................................................................................................2
Hartley v. Rubio,
785 F. Supp. 2d 165 (S.D.N.Y. 2011)........................................................................................1
Hayes v. N.Y. Atty Grievance Comm.,
672 F.3d 158 (2d Cir. 2012).......................................................................................................2
Hill v. Colorado,
530 U.S. 703 (2000) ...............................................................................................................2, 9
Kolender v. Lawson,
461 U.S. 352 (1983) ...................................................................................................................8
Koslow v. Horn,
2010 U. S. Dist. LEXIS 144693 (S.D.N.Y. Dec. 14, 2010) ......................................................4
Rabe v. Washington,
405 U.S. 313 (1972) ...................................................................................................................7
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Sabetti v. Dipaolo,
16 F.3d 16 (1st Cir. 1994) ......................................................................................................5, 7
SEC v. Treadway,
430 F. Supp. 2d 293 (S.D.N.Y. 2006)........................................................................................1
U.S. v. Colon-Ortiz,
866 F.2d 6 (1st Cir. 1989) ..........................................................................................................7
VIP of Berlin, LLC v. Town of Berlin,
593 F.3d 179 (2d Cir. 2010).......................................................................................................5
STATUTES & RULES
5 U.S.C.
8905-a ............................................................................................................................ passim
N.Y. Exec. Law
60..............................................................................................................................................4
63(1) .........................................................................................................................................4


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I. THIS CASE IS RIPE FOR SUMMARY JUDGMENT
This case is ripe for summary judgment in favor of Plaintiffs, despite the AGs best
efforts to avoid that result by raising boilerplate evidentiary objections to nearly half of Plaintiffs
56.1 facts (which Plaintiffs address in response to the AGs motion to strike) and improperly
disputing (while not actually disputing) others.
1

Notably, this case can be decided in Plaintiffs favor under the notice prong of the void-
for-vagueness doctrine without looking at any evidence at all. As this Court said previously, a
plain reading of [8905-a] suggests that Plaintiffs would be allowed to promote a professional
MMA event in New York if the event were sanctioned by one of the exempt organizations.
(Opinion & Order 2nd MTD, 9/30/13, ECF No. 49 (Opinion), at 24.) Key state officials
including the AGagreed. The AG now argues the text of 8905-a means something altogether
different: it must be read to allow only the sanctioning of single discipline traditional long
recognized martial arts. (See, e.g., AG Opposition at 11-12, 15 & n.5.) However, a person of
1
Despite the AGs sweeping (and meritless) evidentiary objections and attempts to create disputes of fact where
none exist, there are at least 244 facts submitted by Plaintiffs that are not actually in dispute. Among them are 102
facts in Plaintiffs Rule 56.1 Statement that the AG asserts are undisputed and to which he makes no evidentiary
objection. There are an additional 49 facts that the AG does not dispute, but objects to on evidentiary bases (which
are addressed in Plaintiffs Opposition to the AGs Motion to Strike). And, although the AG purports to dispute
many other of Plaintiffs facts, for 93 of the disputes, he actually just states that they are disputed as misleading
(and 82 of those have no evidentiary objection). Disputed as misleading does not specifically controvert the
undisputed facts asserted by Plaintiffs as is required by Rule 56.1. The facts are the facts. Inferences to be drawn
from facts are for the Court to decide, and asserting that facts are somehow misleading does not render them
disputed. See Hartley v. Rubio, 785 F. Supp. 2d 165, 171 n.1 (S.D.N.Y. 2011) (rejecting responses that simply
advocate for a different spin on otherwise uncontroverted facts); SEC v. Treadway, 430 F. Supp. 2d 293, 300 n.4
(S.D.N.Y. 2006) (responses that declare a fact to be incomplete and misleading are insufficient to create an issue
of disputed fact). For example, the AG disputes as misleading the fact that neither the text nor legislative history
of 8905-a uses the term mixed martial arts or mma. (AG 56.1 Resp., 8/21/14, ECF No. 116 (AG 56.1 Resp.)
39.) But there is no dispute that those words are not in the legislative historythe AG simply notes a separate fact,
that different wordsultimate fightingare used. (Id.)
And the number of truly undisputed facts is much larger and 243 because the AGs 56.1 response is replete with
disputed facts supported by nonresponsive or nonsensical citations, and thus the facts are not specifically
controvert[ed] and should be deemed to be admitted,. Fed. Ins. Co. v. SafeNet, Inc., 817 F. Supp. 2d 290, 293
n.1 (S.D.N.Y. 2011). For example, the AG disputes the fact that Glory is a martial arts promotion that began in
2012 (Pls. 56.1153) by asserting the Commission never understood Glory to be anything other than kickboxing,
which the Commission understood to be a traditional single-discipline martial art. (AG 56.1 Resp. 153.) This
response is a non sequitur: the undisputed fact has nothing to do with the SACs understanding of anything.
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ordinary intelligence would never read 8905-a to reach that conclusion, let alone understand
what it meansthose words appear nowhere in the text, the AG offers no definition of them, and
there are no published guidelines as to their meaning. It is a basic principle of due process that
an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972).
Plaintiffs also prevail under the enforcement prong of the vagueness doctrine, where
evidence does matter, because the evidence is overwhelming that state officialslacking clear
guidance under 8905-amade arbitrary or discriminatory decisions as to what Exempt
Organizations could or could not sanction. (Pls. 56.1 230-57.) The AG tries to erase this
evidence, arguing it is irrelevant and should be struck. But as this Court already held, [c]ourts
routinely consider such evidence in adjudicating vagueness claims. (Opinion at 22-23.)
2

II. SECTION 8905-a IS VAGUE UNDER THE NOTICE PRONG
This case can be decided in Plaintiffs favor without looking at any evidence. A statute
can be impermissibly vague for either of two independent reasons: (a) lack of notice and (b)
arbitrary or discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000). Under the
notice prong, the inquiry is objective, requiring no evidence, asking only if the text of the statute
gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited.
3

Hayes v. N.Y. Atty Grievance Comm., 672 F.3d 158, 168 (2d Cir. 2012); accord Anderson v.
2
In response to the AGs opposition to Plaintiffs motion (AG Opposition), Plaintiffs incorporate by reference
their opposition to the AGs motion for summary judgment with respect to amateur MMA, standing, abstention, the
2001 Liquor Law, and MMA on Indian Reservations. (Pls. Opposition, 8/21/13, ECF No. 109 (Pls. Opposition),
I, III-VI.) Unless otherwise indicated, abbreviations and capitalized terms are defined in Plaintiffs opening
papers (ECF Nos. 87-88), and in their papers filed in Opposition to the AGs Motion for Summary Judgment (ECF
Nos. 109-110).
3
Inconsistent interpretation by state officials, however, is germane on the notice prong because [i]f administrators
cannot determine the meaning of a prohibition, those subject to it can hardly [be] expect[ed] . . . to do so. Hayes,
672 F.3d at 169.
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Morrow, 371 F.3d 1027, 1031-32 (9th Cir. 2004) (notice test looks at the very words of the
statute to see if sufficiently precise to provide comprehensible notice).
Here, either the plain language means what it saysthat Exempt Organizations can
sanction any martial art, including MMAor it fails to provide notice of what is and is not
allowed, and is vague.
A. A Person of Ordinary Intelligence Would Think 8905-a Says Exempt
Organizations Can Sanction MMA
Many have agreedincluding the AG and this Courtthat the plain text of 8905-a says
an Exempt Organization can sanction professional MMA. (Opinion at 24; ECF No. 42 at 46:1-
8.) Thus, the WKAan Exempt Organization recognized by the Stateshould be able to
sanction professional MMA under the Unified Rules in New York, as it does elsewhere.
In open court, the AG unequivocally took this position: I dont see much wiggle room
here the statute is clear and thats what it means . . . [I]t looks as if one of these exempt
organizations could sanction a mixed martial arts event. (ECF No. 42 at 46:1-6, 49:11-15
(emphasis added).) He assured the Court that he had checked with SAC counsel and I couldnt
find a single lawyer in that agency that disagreed with me. (Id. at 70:16-17.)
The AG now calls this a mistaken remark, but the AGs statement to this Court was
hardly a mistake. For sixteen months, in three briefs and at oral argument the AG advanced
this interpretation of 8905-a. (Pls. 56.1 99.) He did it deliberately in an attempt to have this
case dismissed. From the moment Plaintiffs confronted the AG with evidence that the WKA was
sanctioning other mixed martial arts in New York, the AG chided Plaintiffs for even bringing
this lawsuit, rather than exploring the possibilities offered by the exemption. (ECF No. 37 at
20.) He insisted that the possibility of an Exempt Organization sanctioning professional MMA
was simply a reflection of what the statute says. (Id.)
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The AG also calls his initial position that an Exempt Organization can sanction
professional MMA a blip on the screen (AG Opposition at 16-17), but it is no blip either.
4

This Court read it that way. (Opinion at 24.) James Leary, a lawyer at the DOS, and an
independent auditor from the DOS both did.
5
(Levitt 42, 43.) Plaintiffs, WKA President Brian
Crenshaw, and veteran MMA journalist Jim Genia all do as well. (Levitt 20 (Crenshaw), at
12:18-21; Levitt 8 (Genia), at 128:21-25, 162:2-25.)
It is undeniable that a person of ordinary intelligence would read 8905-a to mean what
it actually says: that an Exempt Organization can sanction professional MMA.
B. A Person of Ordinary Intelligence Would Not Read 8905-a to Permit Only
Long Recognized, Traditional, or Single Discipline Martial Arts
The AG now argues in his Opposition that somehow the text of 8905-a puts a person of
ordinary intelligence on notice (at risk of criminal jeopardy) that Exempt Organizations can
sanction only single discipline traditional long recognized martial arts. (AG Opposition at
11-12.) This interpretation finds no footing in the actual text of 8905-a.
When the AG changed course after oral argument on his motion to dismiss and said that
an Exempt Organization cannot sanction professional MMA, he did not argue then that the text
4
The AG strains to eliminate the significance of his own words by compartmentalizing his office. He says that
unlike statements made by the OAG litigation counsel in this case the law enforcement personnel of the OAG
have never had occasion to interpret or enforce the Exempt Organization provision. (AG Opposition at 16.) But
the AG cannot subdivide himself. N.Y. Exec. Law 60, 63(1) (The head of the department of law shall be the
attorney-general, who shall have charge and control of all the legal business of the departments and bureaus of the
state); Adler v. Menifee, 293 F. Supp. 2d 363, 369 (S.D.N.Y. 2003).
5
The AG tries to minimize the fact that State officials (including himself) have read 8905-a contrary to the way he
and the DOS now claim it should be read by arguing that [t]he vagueness doctrine does not suggest that all courts
and state officials must agree on a specific construction of a statute in order for it to meet the fair notice requirement.
(AG Opposition at 14) (citing Koslow v. Horn, 2010 U. S. Dist. LEXIS 144693, at *20 (S.D.N.Y. Dec. 14, 2010).)
But in all the cases the AG cites, the actual words of the statute easily encompassed the relevant conduct. See, e.g.,
id. at *22-23 (although some courts and officials had read the word depicts in sexual predator law to proscribe
only communications that included images, because the ordinary meaning of the word depicts has long included
representations in words the statute gave fair notice that sexually explicit text-only communications intended to
lure minors were proscribed). Here, the situation is the opposite: the AG seeks to criminalize Plaintiffs conduct
with a single discipline traditional long recognized formulation that finds no home in the statutory text.

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of 8905-a supported him; to the contrary, he turned to legislative history to try to explain why
the statute must be interpreted in his favor despite its plain meaning.
6
(ECF No. 46 at 5, 7.) In
making this legislative history argument, the AG said [t]he text of the Exempt Organizations
Provision appears to be clear on its face, but a literal reading of the statutory text should
not . . . defeat the general purpose and manifest policy intended to be promoted. (Id. at 7.)
Now, however, the text of 8905-a apparently means something completely different.
Whereas 8905-a actually says that an Exempt Organization can sanction any professional
match or exhibition, the AG now reads those words to say an Exempt Organization can sanction
any single-discipline, traditional, long-recognized martial art professional match or exhibition.
A person of ordinary intelligence could not understand 8905-a as the AG does.
First, none of the words the AG reads into the textlong-recognized, single-
discipline, or traditionalappear anywhere in 8905-a. The statutes language [must]
convey[] sufficiently definite warning for a person to know what is proscribed. VIP of Berlin,
LLC v. Town of Berlin, 593 F.3d 179, 187 (2d Cir. 2010).
Second, no oneincluding the AGargues Exempt Organizations can only sanction the
sports whose names are in the statute: kenpo, tae kwon do, judo, and karate. (Pls. 56.1 134.)
The AG says instead that [t]he listed Exempt Organizations appear from their names to be
devoted to long-recognized traditional martial arts (AG Opposition at 11 (emphasis added)),
6
As Plaintiffs have explained previously: (a) legislative history cannot contradict a statutes plain language in a
vagueness case and (b) the legislative history here supports Plaintiffs because as state officials and many other
witnesses testified, the no holds barred fighting described there is not MMA today under the Unified Rules. (Pls.
Opposition at 12-18; Pls. MSJ, 7/31/14, ECF No. 87, at 11-14; accord Sabetti v. Dipaolo, 16 F.3d 16, 17 (1st Cir.
1994) ([O]rdinary individuals trying to conform their conduct to law should be able to do so by reading the face of
a statutenot by having to appeal to outside legal materials). Though the AG purports to dispute that MMA
today is different from the no holds barred fighting in 1997, he cites nothing to support his supposed dispute of
this critical issue. (AG Opposition at 12.) Nor does he respond to the admissions by state officials James Leary and
Glen Alleyne that MMA is different than no holds barred fighting. (See AG 56.1 Resp. 213 (only disputing
testimony of J. Genia and H. Spindola on that issue because they are unaffiliated with the State and unable to
concede anything for defendants, but not disputing statements of Leary and Alleyne that MMA is different than
no holds barred fighting); see also Levitt 39 (Alleyne), at 81:22-83:15, Levitt 12 (Leary) at 164:20-165:25.)
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apparently suggesting that a person of ordinary intelligence should be able to infer from those
four names what it is that may be sanctioned. But kenpo, one of the sports actually listed in
8905-a, fails the AGs own single discipline test: it mixes Chinese martial arts with boxing
and judo, a fact that the AG does not dispute. (Pls. 56.1 242; AG 56.1 Resp. 242.)
7
And the
State concedes that Exempt Organizations can sanction events other than those listed in 8905-a;
among them kickboxing, jiu-jitsu, san da, Brazilian jiu-jitsu, Glory, K-1, and Muay Thai. (Pls.
56.1 134-35; AG 56.1 Resp. 134-35.)
Third, despite the fact that the State concedes other sports besides those listed can be
sanctioned by an Exempt Organization, there is no guidance anywhere to inform people which
sports are in and which sports are out. The statute does not say it, and the SACs Glenn Alleyne
conceded in his declaration filed by the AG in opposition that the Commission has never issued
any written guidelines regarding what qualifies as single-discipline. (Alleyne Decl. 7.)
Finally, by the AGs own admission, the plain text of 8905-a does not define allowable
martial arts with reference to specific sports anyway. Rather, the exemption was intended to
favor responsible organizations, which decide which martial arts to sanction, presumably
according to their established rules. (AG Opposition at 12.)
There is no credible argument that a person of ordinary intelligence would read the text
of 8905-a and think it means what the AG says. Suppose, hypothetically, in order to prevent
contaminated produce, a statute prohibits the sale of all perishable goods except fruit. Fruit
is defined as any FDA-sanctioned produce such as bananas, oranges, and kiwis. A farmer sells
apples, and criminal charges are filed. The farmer protests, but the FDA sanctions apples. The
7
Though the AG does not dispute this key fact, he separately disputes that kenpo was developed in Hawaii in the
1950s and it mixes Chinese martial arts with boxing and Judo. (Pls. 56.1 179; AG 56.1 Resp. 179.) But the AG
provides no actual support for his dispute, instead circularly citing 8905-a itself and the Watson Declaration
statement (unsupported by evidence) that the Legislature had a preference for single-discipline martial arts.
(AG 56.1 Resp. 179; Watson Decl. 6.)
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state responds, apples are not in the statutes list. The farmer replies, but you allow
pineapples and plums, and they arent on the list either. The state says, yes, but those arent
red fruit. It is unthinkable that the farmer goes to prison for not divining that the law means he
can sell all FDA-sanctioned fruit other than red fruit (a fact not mentioned in the statute).
A criminal statute cannot punish on terms never even mentioned in the law because such
a law must be definite and certain . . . [i]f men of ordinary intelligence must guess at the
meaning of a restriction, it is invalid. 33 Seminary LLC v. City of Binghamton, 2013 WL
2446306, at *8 (N.D.N.Y. June 5, 2013); accord Sabetti, 16 F.3d at 17 ([A] criminal statute
fails to provide fair notice if a person of ordinary intelligence, examining [only] the language
of the statute, would be in some way surprised that it prohibited the conduct in question). In
Rabe v. Washington, petitioner was convicted under a statute that proscribed showing obscene
movies. 405 U.S. 313, 315-16 (1972) (per curiam). The state supreme court affirmed, not
finding the movie obscene, but that it was obscene in the context of its exhibition because it
was shown outdoors. Id. at 315. The Supreme Court invalidated the conviction: The statute
under which petitioner was prosecuted . . . made no mention that the context or location of the
exhibition was an element of the offense somehow modifying the word obscene. Id. Any
attempt to support this conviction on the ground that the statute seeks to preserve an
appropriately decorous atmosphere . . . must fail in the absence of any language in the statute that
would have put appellant on notice that his conduct was prohibited. Id. at 316.
The AGs single discipline interpretation of 8905-a fails for the same reason. Either
8905-a means what it says on its face, or it is unconstitutionally vague.
8

8
Even if 8905-a somehow could be read as the AG now posits, Plaintiffs still would prevail: a statute that is
capable of two completely divergent interpretations is surely vague. See U.S. v. Colon-Ortiz, 866 F.2d 6, 9 (1st Cir.
1989) (penalty scheme failed to provide notice; its language was not only inconsistent, but [] directly contradictory
in appearing to at once mandate a prison term and allow a court to impose either a fine or a prison term).
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III. THE STATES ENFORCEMENT OF 8905-a HAS BEEN ARBITRARY OR
DISCRIMINATORY
Plaintiffs also prevail under the enforcement prong because once the facts from discovery
are taken into account, that evidence is overwhelming that state officialslacking clear
guidancemade (and continue to make) arbitrary or discriminatory decisions as to what can be
sanctioned under 8905-a. (Pls. 56.1 115-257.) Here, the factsmany of which the AG
concedes are undisputed yet tries to excludeshow that state officials are all over the map in
what they have done and in their explanations for it. (Id.) State officials have evidenced total
confusion in trying to explain how they have enforced 8905-a to allow sports beyond those
listed in 8905-amany of which mix martial artsbut not professional MMA (and until this
case, not amateur MMA either). (Id.) State officials could articulate no explicit standard for
what makes something single discipline and could not agree on what factors, or how many,
they relied on in making their determinations. (Pls. 56.1 182-210.) One factor repeatedly
mentioned was history, but state officials had no idea how long a history was sufficient (id.
194-97), and one of the events the SAC says is permissibleGlorydescribes itself as being
just two years old. (Id. 153, 196; Alleyne Decl. 19.) They could not state how they would
apply the test to specific cases and denied they had expertise to decide them. (Id. 182-210,
251-57.)
9

Such standardless discretion is precisely what the vagueness doctrine seeks to avoid. See
Kolender v. Lawson, 461 U.S. 352, 360 (1983) (statute unconstitutionally vague because its
enforcement would depend only on the whim of any police officer . . . against particular
groups deemed to merit their displeasure); Bass Plating Co. v. Town of Windsor, 639 F. Supp.
873, 881 (D. Conn. 1986) (regulation unconstitutionally vague on evidence that of three
9
This confusion is compounded by the AGs repeated argument that the SAC lacks enforcement authority, while at
the same time using the SACs interpretations and revisionist enforcement history to explain his latest position.
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companies, only plaintiff was required to adhere to a requirement, found in no published
guidelines, that its waste contain less than 50% water; The selective, ad hoc and arbitrary
determinations engendered by [the statutes] vague directions to those entrusted with their
enforcement as well as their discriminatory application violated the plaintiffs right[s]).
The AG devotes all of one sentence (in a footnote) to actually responding to the extensive
evidence of arbitrary or discriminatory enforcement, because he has no response.
10
(AG
Opposition at 14 n.4.) Attempting to explain away that the SAC has allowed the sanctioning of
many sports that mix martial arts, he says only: to the extent the SAC was aware of such events,
they were either kickboxing or muay thai, sports that the SAC believes are traditional single-
discipline martial arts . . . . (Id. at 15 n.5.) First, neither kickboxing nor Muay Thai is
mentioned in 8905-a. Second, the AG seems to argue that if the SAC (which he says has no
authority) believes a sport is single discipline (whatever that means), it passes the test. (Id.)
For this proposition, the AG cites the declaration of Mr. Alleyne from the SAC. (Id.) But
neither the SAC nor Mr. Alleyne even knows what these sports are. Mr. Alleyne described
Muay Thai, which the SAC believes is single discipline, as defined by whatever, is an art
that includes Muay Thai-ish things. Thats the best I can do, honestly. . . . I dont know the
particulars of what that is . . . (Levitt 39 (Alleyne) at 133:2-134:3).
The very declaration on which the AG relies in an attempt to explain away the evidence
of standardless discretion makes clear that no criteria were applied to reach actual decisions: so
long as it was represented to the SAC that a sport was single-discipline (and never mind if it
was mentioned in the statute, or if the sport, i.e. Glory or Muay Thai, is broadly represented as
10
Rather than responding to the extensive evidence of arbitrary and discriminatory enforcement on the merits, the
AG again seeks to avoid the issue by claiming that it appears to really be an equal protection attack on
discriminatory treatment, a claim that was dismissed by this Court twice. (AG Opposition at 15 n. 5.) As the AG
well knows, this is not an equal protection argument; the enforcement prong of the vagueness test looks at whether
the statute permits discriminatory enforcement. See Hill, 530 U.S. at 732.
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mixing disciplines) that would be enough for the SAC. (Alleyne Decl. 15-19.) For example,
Mr. Alleyne states with regard to Glory, a competitor of the UFC, inasmuch as this particular
event was held out as a single-discipline martial arts event and sanctioned by an Exempt
Organization, it would have been the Commissions position that this particular event would not
have run afoul of []8905-a. (Id. 19 (emphasis added).) It is as if the states response to the
farmer prosecuted for distributing red apples was that others who distributed pomegranates and
raspberries were not prosecuted because they held out those fruits as dark pink. Besides,
Glory actually holds itself out as mixing martial arts. (See Pls. 56.1 67.)
The AG then repeats his argument that in an as-applied challenge, if Plaintiffs conduct is
at the core of what is prohibited, the court cannot consider hypotheticals not at the core. (AG
Opposition at 13, 23 n.13.) But no oneespecially the Stateknows what the core of
8905-a is, other than what the Legislature said it was banning: unsanctioned no holds barred
fighting, which is not MMA today sanctioned by an Exempt Organization. (Pls. 56.1 213.)
And the Alleyne declaration shows that Plaintiffs examples were real cases the SAC considered,
not hypotheticals. (Alleyne Decl. 11-27.) The AG makes much of Farrell v. Burke, but in
Farrell the situation was the opposite. 449 F.3d 470 (2d Cir. 2006). The Farrell court noted that
the same statute had twice been held unconstitutional when challengedas herepre-
enforcement. Id. at 490. And the court held that under all definitions relevant to Farrells case,
including Farrells own definition of pornography, the magazine at issue qualified. Id. at 491-92.
Here, by contrast, numerous people read 8905-a to allow what the State forbids: an Exempt
Organization sanctioning professional MMA.
Ultimately, the AGwho cannot explain away the history of arbitrary enforcement
moves to strike the evidence of it as irrelevant. But this Court previously rejected the AGs
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position, holding [c]ourts routinely consider such evidence in adjudicating vagueness claims.
(Opinion at 22-23; accord Chatin v. Coombe, 186 F.3d 82, 89 (2d Cir 1999) (considering
officials testimony that the treatment of prisoners . . . has varied greatly to conclude that
prison officials had unfettered discretion); Derby v. Town of Hartford, 599 F. Supp. 130, 136
(D. Vt. 1984) (deposition testimony of the enforcing officers . . . demonstrate[d] the large
measure of discretion . . . due to the lack of standards and guidelines in the ordinance. The
confusion and wide divergence of opinion made it abundantly clear that the ordinance fails to
give adequate notice of proscribed conduct. . . . Such discretion necessarily invites arbitrary and
discriminatory treatment); see also Pls. Opposition to AG Motion to Strike, 9/4/14.
The long history of inconsistent, arbitrary, and discriminatory enforcement of 8905-a
makes clear that it is unconstitutionally vague.
IV. CONCLUSION
Plaintiffs respectfully request that their Motion for Summary Judgment on Counts Three
and Eight of the Second Amended Complaint be granted.

Dated: New York, New York
September 4, 2014


MORRISON & FOERSTER LLP


Barry Friedman
40 Washington Square South
Room 317
New York, New York 10014-1005
Phone: 212.998.6293
Fax: 212.995.4030
barry.friedman@nyu.edu
By:

/s/ Jamie A. Levitt
Jamie A. Levitt
Jonathan C. Rothberg
250 West 55th Street
New York, New York 10019-9601
Phone: 212.468.8000
Fax: 212.468.7900
jlevitt@mofo.com
jrothberg@mofo.com

Attorneys for Plaintiffs

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