Reasons for judgement were released last week discussing the scope of Joe Hand Promotions standing to sue parties who unlawfully acquire UFC Pay Per View products.
In last week’s case (Joe Hand Promotions, Inc. v. Roseville Moose Lodge No. 1293) the Plaintiff sued the Defendant alleging they were a commercial establishment that unlawfully intercepted UFC 157. The Defendant brought a motion to dismiss the lawsuit arguing that they were a charitable organization, not a commercial establishment and could not be sued by Joe Hand because Joe Hand only had the right to go after commercial entities.
The Defendant relied on the Plaintiff’s Distribution Agreement with Zuffa. The Court noted that the agreement was subject to Nevada law and that Joe Hand’s powers may not be restricted to only suing commercial establishments but all non-residential entities. In reaching this conclusion District Judge England noted as follows:
However, even if the Court considered the Warner Declaration and were to find Defendant to be a non-commercial entity, Defendant could still not prevail at this time. As set forth in Plaintiff’s briefing, the Distributorship Agreement is governed by Nevada law. Under that state’s law, “it is well-established that a course of dealing may modify an agreement.” Wal-Go Associates v. Leon, 624 P.2d 507, 510 (Nev. 1981). Therefore, Plaintiff argues that the course of conduct between the parties to the Distributorship Agreement confirms that the intent of the parties was for the agreement to cover all non-residential use. If correct, the Distributorship Agreement would cover the exhibition of the Program at Defendant’s Lodge, whether or not Defendant is deemed to be a commercial entity. Thus, even if the Court considered the Warner Declaration, denial of Defendant’s motion is warranted.