United States District Court, N.D. California
THOMAS A. SHIELDS, et al., Plaintiffs,
v.
FEDERATION INTERNATIONALE DE NATATION, Defendant. INTERNATIONAL SWIMMING LEAGUE, LTD, Plaintiff,
v.
FEDERATION INTERNATIONALE DE NATATION, Defendant.
ORDER RE: DEFENDANT'S MOTIONS TO DISMISS
FOLLOWING SUPPLEMENTAL BRIEFING ON PERSONAL
JURISDICTION
Jacqueline Scott Corley United States Magistrate Judge.
Three
world-class swimmers (“Class-Action Plaintiffs”)
bring a putative class action against the Federation
Internationale de Natation (“Defendant” or
“FINA”), alleging federal antitrust violations
and a state law tort claim arising out of FINA's control
over international swimming competitions. (Dkt. No. 1
(18-cv-07393).)[1] International Swimming League, Ltd.
(“ISL”) also sues FINA alleging the same claims
arising out of the same conduct.[2] (Dkt. No. 1 (18-cv-07394).)
Now before the Court are Defendant's motions to dismiss
both complaints pursuant to Federal Rules of Civil Procedure
12(b)(2) and 12(b)(6). (Dkt. Nos. 19 (18-cv-07393) & 18
(18-cv-07394).) On June 4, 2019, the Court issued an order
that deferred ruling on Defendant's motions pending
jurisdictional discovery and supplemental briefing. (Dkt. No.
37 (18-cv-07394).)[3] The parties have completed their discovery
and submitted their supplemental briefing. (See Dkt.
Nos. 67 & 76.) The parties have also submitted several
administrative motions to seal in conjunction with their
supplemental briefing. (Dkt. Nos. 66; 74; 80.) After careful
consideration of the parties' briefing and having had the
benefit of oral argument on December 12, 2019, the Court
DENIES Defendant's motions to dismiss and DENIES the
parties' administrative motions to file under seal.
BACKGROUND
I.
The Parties
A.
Class Action
Thomas
A. Shields is a professional swimmer and Olympic gold
medalist who resides in Berkeley, California. (Dkt. No. 1 at
¶ 22 (18-cv-07393).) Michael C. Andrew resides in
Encitas, California, and “has been swimming
professionally since 2013.” (Id. at ¶
23.) He has set multiple world records and won a gold medal
“at the 2016 FINA Short Course World
Championships.” (Id.) Katinka Hosszu resides
in Hungary, and “is a three-time Olympic gold medalist
who has set or holds multiple world records.”
(Id. at ¶ 24.) She is also “[a]
three-time FINA Swimmer of the Year.” (Id.)
The
Class-Action Plaintiffs bring their action on behalf of
themselves and other “swimmers who comprise the input
market of top-tier swimmers who have competed on the
sport's highest stages or have otherwise performed at a
high-enough level that they can earn invitations to premiere
competitions and draw lucrative sponsorships.”
(Id. at ¶ 25.)
B.
ISL
Plaintiff
ISL[4]
“is a corporation organized and existing under the laws
of Switzerland, ” whose “primary goal is to
promote swimming around the world by organizing and promoting
competitions featuring an innovative team-based format at
events around the world.” (Dkt. No. 1 at ¶¶
50-51 (18-cv-07394).) To accomplish its goal, ISL
“intends to create a worldwide, club-based swimming
league and thereby expand the competitive and financial
opportunities for the world's best swimmers.”
(Id. at ¶ 50.) ISL's plans for 2019
included holding “a 15-match, team-based series of
meets featuring more than 300 top-tier swimmers.”
(Id. at ¶ 4.)
C.
FINA
Defendant
FINA “is an association organized and existing in
accordance with the laws of Switzerland” that is
recognized by the International Olympic Committee as the
governing body for “Olympic swimming, diving, high
diving, water polo, artistic swimming, masters and open-water
swimming.” (Id. at ¶¶ 22, 24, 27
(Dkt. No. 18-cv-07394).) It is one of “dozens” of
international federations recognized by the International
Olympic Committee that are charged with
“administer[ing] their respective sports and
establish[ing] and organiz[ing] the types and rules of
competitions held at the Olympic Games.” (Id.
at ¶ 26.) Thus, FINA sets the “qualifying
criteria” for swimmers to participate in the Olympics
and “will recognize only those qualifying times that
are met at FINA-approved qualifying events.”
(Id. at ¶ 27.)
FINA
“comprises 209 member federations” that
“are themselves national umbrella groups involving
representatives of the various aquatic-sports
disciplines.” (Id. at ¶ 28.) These
national federations can “delegate sub-group entities
to manage the FINA relationship as it pertains to the
disciplines.” (Id.) The United States'
member federation (United States Aquatic Sports, Inc.) has
designated USA Swimming, Inc. (“USA Swimming”) as
the “‘national governing body' of
swimming” in the country. (Id.) The member
federations “exist primarily, if not exclusively, to
prepare and present swimmers for competition in the Olympic
Games.” (Id. at ¶ 87.)
“FINA
and its 209 member federations are governed primarily by a
25-member Bureau. The Bureau's day-to-day power, in turn,
is vested in an eight-member executive committee.”
(Id. at ¶ 30.) Member federations can sometimes
appeal Bureau decisions and rule interpretations to the FINA
General Congress, which is recognized under FINA's
governing rules as “the highest authority of
FINA.” (Id.) The General Congress meets every
two years and its voting members “comprise two
delegates from each member federation.” (Id.
at ¶¶ 30-31.)
Outside
of the Olympic Games, FINA “and other entities that
FINA approves organize and promote international competitions
featuring the world's top swimmers.” (Id.
at ¶ 102.) “FINA grants itself complete authority
under its rules to ban a swimmer from participating in events
that serve as the Olympic Games qualifying events for no
reason other than the swimmer competed in a top-tier
international swimming event that FINA did not itself
organize or approve.” (Id. at ¶ 111.)
II.
Complaint Allegations [5]
A.
Allegations Underlying Both Actions
The
gravamen of the complaints is that FINA uses its control over
Olympic aquatic sports to determine the terms of compensation
and competition for international swimming events outside of
the Olympic games and FINA's own competitions. In doing
so, FINA engages in anticompetitive conduct “to
maintain its grip on both its monopoly power in the market
for top-tier international swimming competitions and its
monopsony power in the market for the supply of top-tier
swimmers.” (Dkt. Nos. 1 at ¶ 11 (18-cv-07393;
18-cv-07394).)
From
September 2017 through December 2017, ISL and FINA negotiated
regarding ISL's plan to host an international swimming
competition in 2018. (Dkt. No. 1 at ¶ 62
(18-cv-07394).)[6] Those negotiations were unsuccessful.
(Id.) Thus, in the spring of 2018, ISL turned to
FINA's member federations and began direct
“discussions with USA Swimming for that national
governing body to host, manage, and organize the ISL event in
December 2018.” (Id. at ¶ 63.) ISL and
USA Swimming considered “Las Vegas's Mandalay Bay
Resort and Casino or the University of Southern California as
potential venues.” (Id. at ¶ 8.)
“As a result of these negotiations, ISL began planning
to host its event in Las Vegas” and “work[ing] to
obtain the support of FINA's member federations.”
(Id. at ¶¶ 63, 65.) In May 2018,
“ISL entered into a memorandum of understanding with .
. . the FINA-recognized ‘continental federation'
comprising the European national federations.”
(Id. at ¶ 65.) ISL then “presented its
plans to representatives of the federations from the United
States, Australia, United Kingdom, Brazil, France, Russia,
and Ukraine.” (Id.)
ISL's
outreach to FINA's member federations drew a response
from FINA Executive Director Cornel Marculescu, who sent a
letter to all FINA members “on or about June 5, 2018,
” stating that ISL “is neither recognized by nor
affiliated [with] FINA.” (Id. at ¶ 66
(internal quotation marks omitted).) Mr. Marculescu warned
the member federations that “FINA would monitor the
matter closely, . . . and sanction anyone who violated
FINA's rule on unauthorized
relations.”[7] (Id.) Mr. Marculescu closed the
letter by “express[ing] his hope that all who received
it would come away from his message with a clear
understanding of FINA's competence and jurisdiction in
respect to international competitions.” (Id.
(internal quotation marks omitted).)
Roughly
a week after Mr. Marculescu's letter, USA Swimming sent
ISL a letter dated June 13, 2018, “express[ing] its
deep concern that a December 2018 event without FINA's
direct blessing would put U.S. swimmers at risk-especially if
FINA sees th[e] December event as a challenge.”
(Id. at ¶ 67 (internal quotation marks
omitted).) The letter stated that USA Swimming “could
not help ISL organize any competition until it received
assurance . . . that FINA is on board with the concept of the
ISL and approves of the concept.” (Id. at
¶ 67 (internal quotation marks omitted).) USA Swimming
thus “pulled out of negotiations for hosting the
December 2018 competition in either [Las Vegas or the
University of Southern California], or anywhere else.”
(Id. at ¶ 8.)
ISL
then “tried to pair with British Swimming to host the
[December 2018] competition in London.” (Id.
at ¶ 9.) However, “within weeks, and in direct
response to Mr. Marculescu's June 5 letter, British
Swimming likewise distanced itself from ISL's planned
December 2018 competition.” (Id. at ¶
68.) ISL and FINA resumed direct negotiations in mid-summer
2018 to discuss the December 2018 competition and how the two
organizations could co-exist. (Id. at ¶¶
14, 69.) As part of these negotiations, FINA insisted on
“event ownership and FINA-naming rights, plus payment
of $50 million to FINA from ISL over 10 years.”
(Id. at ¶ 71.) ISL refused those terms and
negotiations ended in October 2018. (Id.)
Following
the breakdown of its negotiations with FINA, ISL
“teamed up with the Italian Swimming Federation,
” who “agreed to host the December competition in
Turin, Italy.” (Id. at ¶ 10.) On or
around October 17, 2018, the Italian Swimming Federation
notified FINA of its plans to host the competition in Turin
(the “Turin Event”). As Plaintiffs allege,
however:
Despite the extensive planning and expenditure of resources
by ISL and the Italian Swimming Federation, and despite their
having entered into participation and appearance-fee
agreements with more than 50 swimmers from around the world,
FINA coerced its member federations into agreeing to, and
participating in, an overt effort to shut down the Turin
Event by threatening the swimmers with a ban from FINA
events-including the competitions that would serve as the
qualifying meets for the 2020 Olympic Games-if swimmers
participated in the Turin Event.
(Id. at ¶ 11.) FINA issued its threats
“to prevent competition and to maintain its grip on
both its monopoly power in the market for top-tier
international swimming competitions and its monopsony power
in the market for the supply of top-tier swimmers.”
(Id.) Despite warnings from ISL that its conduct
“was both contrary to the letter and spirit of the FINA
rules and, independently, in obvious violation of U.S. and EU
competition law, ” Mr. Marculescu emailed the Italian
Swimming Federation on October 30, 2018, notifying it that
the Turin Event could not proceed without FINA approval.
(Id. at ¶¶ 80-81.) Ultimately, given
FINA's threat of suspension to participating swimmers,
“the Italian Swimming Federation and ISL canceled the
Turin Event on November 15, 2018, under protest.”
(Id. at ¶ 96.) Plaintiffs filed the instant
actions less than one month later.
B.
Class Allegations
As
previously discussed, the complaints in both actions set
forth identical factual allegations. The gravamen of the
class action is that FINA has harmed the Class-Action
Plaintiffs and those similarly situated by preventing them
from participating in ISL events, like the Turin Event, and
other non-FINA approved international swimming competitions.
The Class-Action Plaintiffs propose the following class
definition:
All natural persons who are eligible to compete in swimming
world championship and Olympic Game competitions. Excluded
from this class are members of the boards of directors,
boards of trustees, boards of governors, and senior
executives of FINA and its member federations, and any and
all judges and justices, and chambers' staff, assigned to
hear or adjudicate any aspect of this litigation.
(Dkt. No. 1 at ¶ 129 (18-cv-07393).)
C.
Claims and Requested Relief
The
Class-Action Plaintiffs and ISL bring the same three causes
of action: (1) violation of Section 1 of the Sherman Act, 15
U.S.C. § 1; (2) violation of Section 2 of the Sherman
Act, 15 U.S.C. § 2; and (3) a state law claim for
“tortious interference with prospective economic
relations.” (Dkt. Nos. 1 at ¶¶ 137-160
(18-cv-07393) & 1 at ¶¶ 128-150 (18-cv-07394).)
Likewise, Plaintiffs in both actions seek monetary and
injunctive relief, as well as attorneys' fees and costs.
The Class Action-Plaintiffs also seek “equitable
relief; including a judicial determination of the rights and
responsibilities of the parties.” (Dkt. No. 1 at 45
(18-cv-07393).)
III.
Procedural History
The
Class-Action Plaintiffs and ISL filed their respective
complaints on December 7, 2018. Defendant filed the instant
motions to dismiss on March 1, 2019. ISL filed its opposition
on April 25, 2019. (Dkt. No. 32 (18-cv-07394).) The
Class-Action Plaintiffs filed their opposition the same day,
offering no substantive arguments; instead, the opposition
states, in pertinent part: “[G]iven that FINA asserts
no basis for dismissal of this action independent from its
arguments against the ISL case, Plaintiffs incorporate by
reference ISL's Opposition brief and reassert the
arguments as if they were Plaintiffs' own.” (Dkt.
No. 34 at 2 (18-cv-07393).) Thus, the Class-Action
Plaintiffs' opposition asserts no arguments specific to
their own action and does not respond to Defendant's
class action-specific arguments in support of its motion to
dismiss. (See Id. (“For the reasons set forth
in ISL's Opposition, attached here as Exhibit A, the
Court should deny FINA's motion in its
entirety.”).) Defendant argues that such incorporation
by reference is improper, and in failing to respond to
Defendant's class-action specific arguments, the
Class-Action Plaintiffs have effectively failed to oppose
dismissal. (See Dkt. No. 35 at 2-5 (18-cv-07393).)
As
noted in the Court's June 2019 Order, given that the
complaints assert the same core allegations and both actions
are before the undersigned, the Court does not consider
Defendant's motion to dismiss the class action as
unopposed. (See Dkt. No. 37 at 7-8.) Further,
Defendant's motions to dismiss set forth nearly verbatim
arguments in support of dismissal of both actions. Thus, when
discussing the arguments set forth in opposition to the
motions to dismiss, the Court refers to the Class-Action
Plaintiffs and ISL collectively as “Plaintiffs”
and cites only to ISL's opposition briefing, (Dkt. No.
32).
The
Court heard oral argument on Defendant's motions on May
23, 2019, and issued its Order permitting jurisdictional
discovery on June 4, 2019. In pertinent part, the Court's
Order allowed for “limited jurisdictional discovery
regarding the impetus for FINA's June 2018 letter and its
knowledge of ISL's negotiations with USA Swimming
regarding the planned December 2018 [competition] in the
United States.” (Dkt. No. 37 at 17.) The parties
appeared before the undersigned at case management
conferences on June 20, 2019 and July 11, 2019, (Dkt. Nos. 41
& 46), and the Court issued a scheduling order regarding
jurisdictional discovery on July 18, 2019, (Dkt. No. 49). The
Court held another case management conference on August 22,
2019 and resolved several discovery-related issues. (Dkt. No.
54.) On October 8, 2019, the parties filed a joint status
report regarding jurisdictional discovery and indicated that
discovery was “fundamentally complete.” (Dkt. No.
58 at 2.) The Court held a case management conference on
October 10, 2019 and issued an order thereafter setting a
briefing schedule for the parties' supplemental
submissions regarding personal jurisdiction and the
parties' dispute regarding Defendant's
confidentiality designations. (Dkt. No. 60.)
The
parties timely filed their supplemental briefing regarding
jurisdiction, (see Dkt. Nos. 67 & 76), and their
briefing regarding Defendant's confidentiality
designations, (see Dkt. Nos. 66; 69; 70; 72; 73).
The Court heard oral argument on December 12, 2019.
DISCUSSION
Defendant
argues that dismissal is warranted in both cases because this
Court lacks personal jurisdiction over FINA. (Dkt. Nos. 19 at
8 (18-cv-07393) & 18 at 8 (18-cv-07394).) Defendant
further argues that dismissal is warranted under Rule
12(b)(6). (Id. at 9.) The Court addresses the
asserted bases for dismissal in turn.
I.
Dismissal under 12(b)(2)[8]
On a
Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
that the court has jurisdiction over the defendant. See
Harris Rutsky & Co. Ins. Servs., Inc. v. Bell &
Clements Ltd., 328 F.3d 1122, 1128-29 (9th Cir. 2003).
Where, as here, the court permits discovery to assist in
determining whether it has personal jurisdiction but does not
hold an evidentiary hearing, the “plaintiff must make
only a prima facie showing of jurisdictional facts through
the submitted materials in order to avoid [dismissal].”
Data Disc, Inc. v. Sys. Tech. Ass'n, Inc., 557
F.2d 1280, 1285 (9th Cir. 1977); see also Am. Tel. &
Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586,
588 (9th Cir. 1996) (“[B]ecause the trial court ruled
on the issue relying on affidavits and discovery materials
without holding an evidentiary hearing, dismissal is
appropriate only if the plaintiff has not made a prima facie
showing of personal jurisdiction.”) (internal quotation
marks and citation omitted). Courts must “resolve[ ]
all disputed facts in favor of the plaintiff” in
determining “whether a prima facie showing has been
made.” In re W. States Wholesale Nat. Gas Antitrust
Litig., 715 F.3d 716, 741 (9th Cir. 2013).
There
are two types of personal jurisdiction: general and
specific. Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011). Here, Plaintiffs assert
that the Court has specific jurisdiction over Defendant,
which is a nonresident. The Due Process Clause of the Fifth
Amendment requires that nonresident defendants have
“minimum contacts” with the forum such that the
exercise of personal jurisdiction “does not offend
traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945).
“The
inquiry whether a forum State may assert specific
jurisdiction over a nonresident defendant focuses on the
relationship among the defendant, the forum, and the
litigation.” Walden v. Fiore, 571 U.S. 277,
283-84 (2014) (internal quotation marks and citation
omitted). The specific-jurisdiction analysis is a
“defendant-focused inquiry” that considers both
the “the contacts that the defendant himself creates
with the forum State” and “the defendant's
contacts with the forum State itself, not the defendant's
knowledge of a plaintiff's connections to a forum.”
Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874
F.3d 1064, 1068 (9th Cir. 2017) (citing Walden, 571
U.S. at 284) (internal quotation marks omitted). There is no
dispute that the relevant forum for the Court's
jurisdictional analysis in these antitrust actions is the
United States as a whole, and not merely California. See
Go-Video, 885 F.2d at 1415 (applying “national
contacts analysis” to suit against foreign defendant
brought under the Clayton Act, 15 U.S.C. § 22, alleging
violation of the Sherman Act, 15 U.S.C. § 1); see
also Action Embroidery Corp. v. Atl. Embroidery, Inc.,
368 F.3d 1174, 1177 (9th Cir. 2004) (same).
The
Ninth Circuit utilizes a three-prong test for determining
specific jurisdiction:
(1) The non-resident defendant must purposefully direct his
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and
protections of its laws;
(2) the claim must be one which arises out of or relates to
the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play
and substantial justice, i.e., it must be reasonable.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 802 (9th Cir. 2004). The plaintiff has “the burden
of satisfying the first two prongs”; if it does so, the
defendant must demonstrate that the court's exercise of
personal jurisdiction would be unreasonable. Id.
“If any of the three requirements is not satisfied,
jurisdiction in the forum would deprive the defendant of due
process of law.” Pebble Beach Co. v. Caddy,
453 F.3d 1151, 1155 (9th Cir. 2006) (internal quotation marks
and citation omitted).
A.
Purposeful Direction
The
parties do not dispute that courts in this circuit apply the
“purposeful direction” test to antitrust actions.
See Schwarzenegger, 374 F.3d at 802-03 (noting that
“[a] purposeful availment analysis is most often used
in suits sounding in contract, ” while the purposeful
direction or “effects” test “is most often
used in suits sounding in tort.”) (citing Calder v.
Jones, 465 U.S. 783 (1984)); see also In re W.
States, 715 F.3d at 743 (applying effects test in
antitrust action). To establish purposeful direction, a
plaintiff must show that the defendant: “(1) committed
an intentional act, (2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be
suffered in the forum state.” Axiom, 874 F.3d
at 1069 (internal quotation marks and citation omitted).
Plaintiffs
have met their burden. The following evidence obtained by
Plaintiffs through discovery, when viewed as a whole,
demonstrates FINA's purposeful direction of allegedly
anticompetitive conduct at the United States:
• February 2018 meeting between representatives of USA
Swimming and FINA during which the parties discussed USA
Swimming's participation in ISL events. (Dkt. No. 66-4,
Ex. 27 (filed under seal).)
• Deposition testimony of USA Swimming Chief Operating
Officer Mike Unger attesting that after the February 2018
meeting FINA Executive Director Cornel Marculescu asked
“to be kept abreast of what was going on”
regarding “the potential event” between ISL and
USA Swimming, ” and that Mr. Unger did as Mr.
Marculescu requested. (Dkt. No. 67-2, Ex. 26A at 141:5-21.)
• March 16, 208 email from Mr. Unger to FINA Vice
President and USA Swimming Ex-officio Board Member Dale
Neuburger regarding the ISL event stating, in pertinent part:
We have been working with them. We also spoke with Cornel
[Marculescu] about this at length. The idea is a world club
swimming championships. USA would have two clubs of the eight
total that would be competing. Late December time-frame.
Possible site Singapore . . . though they have asked us about
the USA hosting.
We have told them that if FINA says “no” to this,
that the USA would have a hard time taking part.
(Dkt. No. 66-4, Ex. 31 at 30 (filed under seal).)
• March 21, 2018 email from Mr. Unger to Mr. Neuburger
stating, in pertinent part: “I'm slightly confused
about the ISL, and we've said all along to them that for
us to participate, it had to be either approved/supported by
FINA . . . or at the very least, FINA was ‘ok' with
it taking place.” (Dkt. No. 66-4, Ex. 30 at 26 (filed
under seal).)
• March 29, 2018 email from Mr. Neuburger to Mr.
Marculescu regarding proposed ISL event: “I now know
that they seek a site in the USA or Australia.” (Dkt.
No. 66-4, Ex. 34 at 37 (filed under seal).)
• Deposition testimony of Mr. Marculescu indicating that
he was in contact with Mr. Neuburger and Mr. Unger regarding
USA Swimming's relationship with ISL and aware of an ISL
event being planned in the United States. (Dkt. No. 66-4, Ex.
45 at 100-03, 107-08 (filed under seal).)
• April 4, 2018 email from Mr. Unger to Mr. Grigorishin
of ISL in which Mr. Unger states that USA Swimming would be
interested in hosting the inaugural ISL swimming competition
in December 2018. (Dkt. No. 67-2, Ex. 3 at 8.)
• Draft minutes of May 11, 2018 meeting of the USA
Swimming International Relations Committee, noting that both
Mr. Neuburger and Mr. Unger were in attendance and that the
committee discussed “the International Swim League
through Energy Standard taking place in either London or Las
Vegas this December.” (Dkt. No. 67-2, Ex. 5 at 14-15.)
• May 14, 2018 email from Mr. Unger to Sid Greenfeig, VP
of Arena Booking for MGM Resorts, stating that the location
of the December 2018 ISL event “was down to London and
Las Vegas.” (Dkt. No. 67-2, Ex. 4 at 10.)
• May 15, 2018 email from Mr. Unger to Mr. Neuburger
requesting guidance regarding FINA's rules on legalized
gambling and stating that he is “[j]ust trying to get
some clarity . . . especially if the ISL meet ends up in Las
Vegas.” (Dkt. No. 67-2, Ex. 6 at 21-22.)
• Deposition testimony of Mr. Unger:
Q. Okay. Let's put it this way: You were making it clear
to everyone you were speaking to [following a May 23, 2018
meeting with ISL in Turkey] that you would not proceed with
the Las Vegas event with ISL unless Cornel [Marculescu]
approved it? Weren't you telling people that, everyone
you spoke with about this?
A. Yes.
(Dkt. No. 67-2, Ex. 26A at 107:20-25.)
• May 25, 2018 email from Mr. Unger to Mr. Greenfeig
stating, in pertinent part: “Still working with the
folks from ISL. Just returning from a stakeholders meeting in
Turkey. They really want to come to Las Vegas, but the only
hold up is some international political wrangling that is
currently causing some stress.” (Dkt. No. 67-2, Ex. 4
at 10.)
• May 25, 2018 email from Mr. Marculescu to Mr.
Neuburger regarding the May 2018 meeting in Turkey between
ISL (identified as “Energy Standard Club”), USA
Swimming, and other member federations. Mr. Marculescu notes
that “Mike [Unger] proposed the event to be organized
in Las Vegas by this Club and people.” (Dkt. No. 67-2,
Ex. 7 at 25.)
• May 25, 2018 reply email from Mr. Neuburger to Mr.
Marculescu stating that Mr. Neuburger “talked with Mike
[Unger] yesterday” and “USA Swimming will respect
FINA and not take part in an ‘unauthorized'
competition.” Mr. Neuburger emphasized that
“USA Swimming will not go against FINA, but
there were statements made yesterday that FINA may be
involved (if the price is right) and that the event does not
violate FINA rules.” (Dkt. No. 67-2, Ex. 7 at 25.)
• May 28, 2018 email from Mr. Unger to a USA Swimming
colleague: “We are being asked to host in Las Vegas.
But FINA doesn't like it. ISL had an organizers meeting
in Turkey . . . and we attended. Right now . . . turning into
a battle ...