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Empire Resorts Wins Second Circuit Antitrust Appeal

Paul, Weiss clients Empire Resorts, Inc. and Monticello Raceway Management, Inc. achieved a significant victory on March 18 when the United States Court of Appeals for the Second Circuit unanimously affirmed earlier decisions by the United States District Court for the Southern District of New York, granting defendants' motions to dismiss claims of violations of the Sherman Act Sections 1 and 2 and denying plaintiffs' leave to replead. Concord Associates and its affiliates had alleged that the defendants conspired to undermine the plaintiffs' resort development project in the Catskills. In 2014, the district court granted the defendants' motion to dismiss on the basis that the plaintiffs had not defined a plausible relevant geographic market in the Catskills region, and later denied plaintiffs' motion for reconsideration and for leave to file an amended complaint.

In an opinion authored by Judge Peter Hall, writing for a panel including Judge Dennis Jacobs and Judge Rosemary Pooler, the court held that the plaintiffs provided no basis on which to justify their proposed geographic market definition, as plaintiffs had "conveniently" excluded gambling markets in Connecticut, Pennsylvania and New Jersey, which are well-known and accessible to residents of the New York metro area, and that the plaintiffs had not plausibly alleged why their proposed destination differs from the variety of other tourist destination options approximately the same distance from the New York metro area as the Catskills site of the proposed project. The Second Circuit further ruled that the plaintiffs had not fulfilled their requirement to show why the Catskills gambling market is a localized or regional market, particularly where the vast majority of customers are not local and have a myriad of other comparable options. The court affirmed the District Court's denial of leave to amend because the plaintiffs' proposed amended complaint did not cure the defects in the plaintiffs' relevant market definition.

Since the lawsuit was commenced, our clients have obtained a license from New York state to build a casino on the grounds of the former Concord Hotel. Construction is underway.

The Paul, Weiss team included litigation partner Moses Silverman, who argued both the motion to dismiss in district court and the Second Circuit appeal, and counsel Daniel Crane.

March 18, 2016

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