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Shields v. Federation Internationale De Natation

United States District Court, N.D. California

December 16, 2019

THOMAS A. SHIELDS, et al., Plaintiffs,


          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.


         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.


         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 ...

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