MLB Sued Biogenesis. Now What? by Wendy Thurm April 2, 2013 Late on March 21, there were a flurry of tweets and other bits of news suggesting that Major League Baseball was about to file a lawsuit against Biogenesis, the Miami “age and wellness” clinic linked to high-profile ballplayers and performance enhancing drugs. The interwebs were alive with speculation on the claims MLB would make; there were even rumors that MLB would charge Biogenesis was part of a “RICO” conspriacy. “RICO” is the acronym for the federal law known as the Racketeer Influenced and Corrupt Practice Act, or the law used to bring down the mob. By mid-morning on March 22, we had some answers. MLB filed a complaint in Florida state court charging Biogenesis, clinic director Anthony Bosch and others clinic associates with intentionally and wrongfully interfering with MLB’s Joint Drug Prevention and Treatment Program — a part of the collective bargaining agreement between MLB and MLBPA — by inducing certain players to purchase, use and distribute performance enhancing substances (PES). MLB claimed the Biogenesis defendants knew of MLB’s prohibition on PES from Manny Ramirez’s 50-game suspension — if not from other sources — as Biogenesis allegedly supplied Ramirez with Human Clorionic Gonadotropin, a banned substance. According to MLB, Biogenesis ignored that information and continued to supply players with prohibited PES. MLB claimed Biogenesis’ action caused the league to suffer monetary and other damages, including the loss of goodwill, revenue, and profits and harm to its reputation. MLB relied largely if not exclusively on information reported by the Miami New Times, Yahoo! and ESPN. Indeed, the complaint repeatedly uses the term “on information and belief,” which is lawyer-speak for “I think this is true, but don’t hold me to it.” The complaint is short and easy to understand, so take a look if you’re so inclined. MLB lawsuit against Biogenesis by newsday The interwebs immediately reacted with “That’s the most ridiculous thing I’ve ever heard,” “That claim will be thrown out of court in a minute,” and “MLB’s lawyers better watch out or they will get sanctioned.” Many exclaimed disbelief that MLB would claim monetary damages including loss of revenue, as such a claim would open the league’s closely-guarded finances to examination. Now that the initial flurry of commentary has abated, let me explain what MLB is trying to accomplish and how they might very well succeed. MLB reportedly filed the action against Biogenesis primarily — if not exclusively — to obtain documents from the clinic, from Bosch, and from the others who allegedly worked with the clinic to supply major-league players with PES. The league tried, in vain, to get the Miami New Times to turn over the documents it obtained and that formed the basis of its investigative reporting. And the league has been stymied by the lack of government interest in the clinic, unlike during the Mitchell Investigation, when federal prosecutors investigating BALCO subpoenaed documents and turned many over to MLB. “A judge will never go for that” screamed the critics. “You can’t just file an action to get documents you’re not otherwise entitled to!” Well, you can if you have sufficient facts to allege a viable legal claim against the party with the documents. And, at first blush, it appears MLB has stated a valid claim against Biogenesis under Florida law. MLB asserts that the Biogenesis defendants intentionally interfered with its contract with the players, including the Joint Drug Prevention and Treatment Program. The elements of the claim are simple: the existence of a contract; defendant’s knowledge of the contract; defendant’s action causing others to breach the contract; damages suffered by the plaintiff as a result. Florida courts, like most state courts, have recognized this legal claim for many years. If you want to dig into the legal details, here’s a nice primer on how courts around the country analyze this type of claim. So what happens now? MLB is likely attempting to serve the complaint, along with the initial court summons, on the defendants. Under Florida procedural law, MLB has 120 days to serve the summons and complaint, although you can bet MLB will attempt service as quickly as possible. When service has been achieved, MLB will file documents with the court, with the date of service. That’s important because the date of service then triggers the defendants’ time to file a response. As of today, the only document on the court’s docket is the complaint, suggesting that the defendants have not yet been served. According to the court’s public information officer, the case has been assigned to Judge Ronald Dresnick of the Eleventh Judicial Circuit of Florida, the state civil trial court for Miami-Dade County. When a defendant is served, he has, essentially, three options. Do nothing, and allow the court to take a default judgment against him. File an answer and proceed with the lawsuit. Or file a motion to dismiss, arguing that the complaint is legally invalid for one reason or another. We don’t know the whereabouts and circumstances of the various defendants. If they own property in Florida or have other Florida-based assets, then they’ll want to take steps to defend the lawsuit. If they failed to defend, and the court entered a default judgment, MLB could execute the judgment by going after the defendants’ assets. The most likely scenario is that defendants would file a motion to dismiss and attack the legal sufficiency of the complaint. The problem for the defendants is that this type of claim — intentional interference with contract — is fact-intensive, and as long as MLB alleges enough to meet the bare minimum legal requirements, a trial court is unlikely to throw the claim out on a motion to dismiss. And that’s where things get interesting, because Florida procedural law allows MLB to start asking the defendants for documents right away. Indeed, MLB could very well have served requests for documents with the complaint. Even if defendants file a motion to dismiss, that will not provide a valid basis for avoiding MLB’s discovery requests. And MLB can start taking depositions of the defendants just 30 days after serving the complaint. (A deposition is a pre-trial examination of a witness, under oath). What’s good for MLB in seeking information and documents from the Biogenesis defendants is true in the reverse — the defendants can start requesting documents and deposition testimony on a variety of subjects, including the genesis and enforcement of the Joint Drug Program and MLB’s financial documents related to its claim of monetary damages. My best guess is that MLB will act swiftly to find out — in sworn testimony — what Biogenesis documents still exist, where they are located, who created and maintained them, and what they mean. If it turns out, as many have speculated, that these documents have already been destroyed, then MLB will likely dismiss its claim, and thus avoid discovery into its own dirty laundry. But first, we wait for evidence on the court’s docket that the Biogenesis defendants have been located and served with the summons and complaint. Then we’ll wait a little while longer to see how the defendants respond. There are the likely first steps in the case, but expect we’ll see many twists and turns before it’s over.