Case 5:22-cv-04486-BLF Document 238 Filed 01/24/23 Page 1 of 15
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`KEKER, VAN NEST & PETERS LLP
`ELLIOT R. PETERS - # 158708
`epeters@keker.com
`DAVID SILBERT - # 173128
`dsilbert@keker.com
`R. ADAM LAURIDSEN - # 243780
`alauridsen@keker.com
`NICHOLAS S. GOLDBERG - # 273614
`ngoldberg@keker.com
`SOPHIE HOOD - # 295881
`shood@keker.com
`633 Battery Street
`San Francisco, CA 94111-1809
`Telephone:
`415 391 5400
`Facsimile:
`415 397 7188
`
`Attorneys for Defendant and Counter-Claimant
`PGA TOUR, INC.
`
`SKADDEN, ARPS, SLATE, MEAGHER &
`FLOM LLP
`ANTHONY J. DREYER - (pro hac vice)
`anthony.dreyer@skadden.com
`KAREN M. LENT - (pro hac vice)
`karen.lent@skadden.com
`MATTHEW M. MARTINO - (pro hac vice)
`matthew.martino@skadden.com
`One Manhattan West
`New York, NY 10001
`Telephone:
`212 735 3000
`Facsimile:
`212 735 2000
`SKADDEN, ARPS, SLATE, MEAGHER &
`FLOM LLP
`PATRICK FITZGERALD - (pro hac vice)
`patrick.fitzgerald@skadden.com
`155 North Wacker Drive
`Chicago, Il 60606
`Telephone:
`312 407 0700
`Facsimile:
`312 407 0411
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`MATT JONES; BRYSON DECHAMBEAU;
`Case No. 5:22-CV-04486-BLF
`PETER UIHLEIN; and LIV GOLF, INC.,
`PGA TOUR, INC.’S NOTICE OF
`MOTION AND MOTION FOR LEAVE
`Plaintiffs,
`TO AMEND COUNTERCLAIM TO ADD
`COUNTER-DEFENDANTS;
`MEMORANDUM OF LAW IN SUPPORT
`THEREOF
`Date:
`Time:
`Courtroom:
`Judge:
`
`v.
`PGA TOUR, INC.,
`Defendant.
`
`May 18, 2023
`9:00 a.m.
`3
`Hon. Beth Labson Freeman
`
`PGA TOUR, INC.,
`Counter-Claimant,
`
`Date Filed: August 3, 2022
`Trial Date:
`January 8, 2024
`
`v.
`LIV GOLF, INC.,
`Counter-Defendant.
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
`
`PGA TOUR, INC.’S NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND
`Case No. 5:22-CV-04486-BLF
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`Case 5:22-cv-04486-BLF Document 238 Filed 01/24/23 Page 2 of 15
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`TABLE OF CONTENTS
`
`Page
`NOTICE OF MOTION AND MOTION ....................................................................................... iii 
`STATEMENT OF ISSUE TO BE DECIDED ....................................................................................... 1 
`MEMORANDUM OF LAW .................................................................................................................... 1 
`I. 
`INTRODUCTION ...............................................................................................................1 
`II. 
`BACKGROUND .................................................................................................................3 
`A. 
`Plaintiffs’ Complaint and the TOUR’s Counterclaim .............................................3 
`B. 
`The TOUR’s subpoenas to PIF and Mr. Al-Rumayyan ...........................................4 
`C. 
`The Shareholders’ Agreement and other recent discovery ......................................5 
`LEGAL STANDARD ..........................................................................................................6 
`ARGUMENT .......................................................................................................................7 
`A. 
`Amendment will not unduly prejudice any opposing party. ....................................7 
`1. 
`PIF and Mr. Al-Rumayyan cannot establish any prejudice. ........................7 
`2. 
`Plaintiffs cannot establish any prejudice. .....................................................9 
`Amendment is not futile...........................................................................................9 
`B. 
`The TOUR promptly sought leave to amend. ........................................................10 
`C. 
`There is no bad faith or dilatory motive in seeking amendment. ...........................10 
`D. 
`The TOUR has not previously sought amendment of its counterclaim. ................10 
`E. 
`CONCLUSION ..................................................................................................................10 
`
`III. 
`IV. 
`
`V. 
`
`
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`Case 5:22-cv-04486-BLF Document 238 Filed 01/24/23 Page 3 of 15
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`
`
`Federal Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`DCD Programs, Ltd. v. Leighton,
`833 F.2d 183 (9th Cir. 1987) .....................................................................................................6
`
`De Malherbe v. Int’l Union of Elevator Constructors,
`438 F. Supp. 1121 (N.D. Cal. 1977) ..........................................................................................6
`
`Dean Markley USA, Inc. v. Cenveo Corp.,
`2015 WL 1843708 (N.D. Cal. 2015) .....................................................................................6, 9
`
`Eminence Cap., LLC v. Aspeon, Inc.,
`316 F.3d 1048 (9th Cir. 2003) ...................................................................................................7
`
`Giuliano v. SanDisk Corp.,
`2014 WL 4685012 (N.D. Cal. Sept. 19, 2014) ..........................................................................7
`
`Griggs v. Pace Am. Grp., Inc.,
`170 F.3d 877 (9th Cir. 1999) ...................................................................................................10
`
`Hurn v. Ret. Fund Tr. of Plumbing, Heating and Piping Indus. of S. Cal.,
`648 F.2d 1252 (9th Cir. 1981) ...................................................................................................9
`
`Sinclair v. San Jose Unified Sch. Dist. Bd.,
`2021 WL 2948871 (N.D. Cal. July 13, 2021) ............................................................................8
`
`In re Snap Inc. Sec. Litig.,
`394 F. Supp. 3d 1156 (C.D. Cal. 2019) .....................................................................................6
`
`Story v. Midland Funding LLC,
`2016 WL 5868077 (D. Or. Oct. 7, 2016) .................................................................................10
`
`Unicorn Energy GMBH v. Tesla Inc.,
`2022 WL 16528138 (N.D. Cal. Oct. 28, 2022)....................................................................9, 10
`
`Federal Statutes
`
`Foreign Sovereign Immunities Act (FSIA) ..................................................................................4, 5
`
`Rules
`
`Federal Rule of Civil Procedure 15 ...................................................................................6, 7, 9, 10
`
`Federal Rule of Civil Procedure 21 .................................................................................................6
`
`
`ii
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`Case 5:22-cv-04486-BLF Document 238 Filed 01/24/23 Page 4 of 15
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`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND COUNSEL OF RECORD:
`Please take notice that on May 18, 2023 at 9:00 a.m. or as soon thereafter as this matter
`can be heard, in the courtroom of District Judge Beth Labson Freeman, located at 280 South 1st
`Street, San Jose, CA 95113, PGA TOUR, INC. will and hereby does move, pursuant to Federal
`Rules of Civil Procedure 15 and 21, for an order granting leave to amend its counterclaim to add
`the Public Investment Fund of the Kingdom of Saudi Arabia and Yasir Othman Al-Rumayyan as
`counter-defendants.
`This motion is based on this Notice of Motion and Motion, the following Memorandum of
`Points and Authorities, all files and records in this action, oral argument, and such additional
`matters as may be judicially noticed by the Court or may come before the Court prior to or at the
`hearing on this matter.
`
`Dated: January 24, 2023
`
`KEKER, VAN NEST & PETERS LLP
`
`
`
`
`
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`
`
`
`
`
`/s/ Elliot R. Peters
`ELLIOT R. PETERS
`DAVID SILBERT
`R. ADAM LAURIDSEN
`NICHOLAS S. GOLDBERG
`SOPHIE HOOD
`
`Attorneys for Defendant and Counter-
`Claimant
`PGA TOUR, INC.
`
`SKADDEN, ARPS, SLATE, MEAGHER
`& FLOM LLP
`
`ANTHONY J. DREYER
`PATRICK FITZGERALD
`KAREN M. LENT
`MATTHEW M. MARTINO
`
`Attorneys for Defendant and Counter-
`Claimant
`PGA TOUR, INC.
`
`iii
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`Case 5:22-cv-04486-BLF Document 238 Filed 01/24/23 Page 5 of 15
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`STATEMENT OF ISSUE TO BE DECIDED
`Whether the Court should grant the PGA TOUR, INC. (“the TOUR”) leave to add the
`
`Public Investment Fund of the Kingdom of Saudi Arabia (“PIF”) and Yasir Othman Al-
`Rumayyan (“Mr. Al-Rumayyan”) as counter-defendants in light of recently produced documents
`demonstrating that they exercise control over LIV Golf Inc. and have participated in the tortious
`interference of the TOUR’s contracts.
`MEMORANDUM OF LAW
`
`I.
`
`INTRODUCTION1
`The TOUR respectfully requests leave to amend its counterclaim to add PIF and Mr. Al-
`Rumayyan as counter-defendants. The TOUR has asserted a counterclaim against counter-
`defendant LIV Golf Inc. for intentionally interfering with the TOUR’s contracts with players,
`including the current Player Plaintiffs. As set forth in the existing counterclaim, LIV intentionally
`and knowingly caused these players to breach their contractual obligations to the TOUR by
`mispresenting TOUR contracts; inducing these breaches by offering highly lucrative contracts
`that make it impossible for players to comply with their TOUR contracts; and providing extensive
`indemnification and hundreds of millions of dollars to compensate LIV players for these
`breaches. Recently produced documents confirm that PIF and Mr. Al-Rumayyan played an active
`and central role in orchestrating these breaches for their own benefit and are equally liable for the
`harm caused to the TOUR.
`LIV is the end result of a long-contrived plan known as “Project Wedge,” which was a
`plan designed to provide a roadmap to taking over professional golf as part of the Kingdom of
`Saudi Arabia’s Vision 2030. Project Wedge and LIV were created by PIF, the sovereign wealth
`fund for the Kingdom of Saudi Arabia that has amassed over half a trillion dollars in assets, and
`of which Mr. Al-Rumayyan is the Governor. Documents produced by LIV reveal that PIF and
`Mr. Al-Rumayyan were instrumental in inducing players to breach their TOUR contracts. In
`
`
`1 Internal citations and quotation remarks have been removed herein and emphases added, unless
`otherwise noted. Page citations to “Dkt.” reference the document’s internal pagination.
`1
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`addition to exercising near absolute authority over LIV, PIF and Mr. Al-Rumayyan have
`personally recruited TOUR players, played an active role in contract negotiations, and expressly
`approved each of the player contracts—all while knowing that these deals would interfere with
`the players’ TOUR contracts. In addition to approving player contracts that pledge to indemnify
`such players from breach of their contractual obligations to the TOUR, Mr. Al-Rumayyan himself
`has gone as far as to provide personal assurances to at least one player about his and PIF’s
`commitment to backing such player in any legal claims by the TOUR. Leave should be granted to
`add both PIF and Mr. Al-Rumayyan as counter-defendants because all relevant factors weigh in
`favor of amendment.
`First, no party will suffer any undue prejudice if amendment is permitted. PIF and Mr. Al-
`Rumayyan should not be surprised that the TOUR seeks to add them as counter-defendants as the
`TOUR has been seeking evidence from them since the case’s inception last August. The belatedly
`produced Subscription and Shareholders’ Agreement signed by Mr. Al-Rumayyan was the
`lynchpin which demonstrated PIF and Mr. Al-Rumayyan’s total control over LIV and established
`that any LIV contract with a player requires authorization by PIF. For their part, the current
`Plaintiffs will suffer no prejudice because the counterclaim against LIV remains unchanged. And
`since LIV, PIF, and Mr. Al-Rumayyan are all represented by the same lawyers at Quinn Emanuel
`and Gibson Dunn, those lawyers need no additional time to get up to speed on the case.
`Second, amendment is not futile because the TOUR has adequately alleged its tortious
`interference with contract claim against PIF and Mr. Al-Rumayyan. Moreover, PIF and Mr. Al-
`Rumayyan cannot meet the steep burden of demonstrating futility based on any sovereign
`immunity or personal jurisdiction defense since their core argument in support of both defenses
`no longer applies: As counter-defendants, PIF and Mr. Al-Rumayyan can no longer claim that
`their conduct is not at the heart of the TOUR’s counterclaim. Indeed, given PIF’s control over the
`conduct of this litigation, PIF and Mr. Al-Rumayyan have been following it closely and thus
`require no updating.
`Third, the TOUR has acted promptly based on recently produced evidence, including the
`Subscription and Shareholders’ Agreement that was produced for the first time in late December.
`
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`Case 5:22-cv-04486-BLF Document 238 Filed 01/24/23 Page 7 of 15
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`LIV produced this document after the deadline for substantially completing document production
`and after repeated requests for the document from the TOUR. LIV cannot now be heard to
`complain about any delay when it dragged its feet in producing this and other key documents
`supporting the TOUR’s proposed amendment. Indeed, despite assurances to the Court last August
`that PIF and Mr. Al-Rumayyan would cooperate in providing discovery in this case, both have
`refused to cooperate in any meaningful way and have delayed and stonewalled at every turn.
`Fourth, there is no evidence whatsoever of bad faith or dilatory motive. Rather, the
`TOUR seeks leave to amend based on its good-faith belief that PIF and Mr. Al-Rumayyan are
`liable for tortious interference.
`Finally, the TOUR has not previously sought amendment of its counterclaim.
`In sum, the Court should grant the TOUR leave to amend its counterclaim.
`
`II.
`
`BACKGROUND
`A.
`Plaintiffs’ Complaint and the TOUR’s Counterclaim
`In August 2022, eleven golfers sought to obtain a temporary restraining order against the
`TOUR based on purported antitrust and contract violations. See Dkt. 2 (Application for TRO).
`The Court denied their request. Dkt. 63 (Order). Since then, eight of the golfers dismissed their
`claims against the TOUR, and LIV entered the case as a plaintiff. LIV is a new professional golf
`tour founded, controlled, and financed by PIF and Mr. Al-Rumayyan. See Declaration of Maile
`Yeats-Rowe (“Yeats-Rowe Decl.”) Ex. A (“Proposed Amended Counterclaim”) ¶ 23.
`Founded in 1971, PIF is the sovereign wealth fund for the Kingdom of Saudi Arabia with
`more than half a trillion dollars of assets under management. See id. ¶ 21. In 2015, PIF was
`“reborn” with a mandate to further Saudi Arabia’s “Vision 2030”—an effort to diversify Saudi
`Arabia’s economy, alleviate its dependence on oil, and better integrate itself with the international
`economy. Id. To that end, PIF and Mr. Al-Rumayyan created LIV in 2021 to take over the world
`of golf to burnish (or “sportswash”) the international reputation of Saudi Arabia and its
`monarchy. Id. ¶ 23. PIF owns at least 93% of LIV and controls its board. Id.
` Id. ¶ 6.
`The TOUR has asserted a counterclaim against LIV for tortious interference with contract.
`
`
`
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`See Dkt. 108 (TOUR Counterclaim). The TOUR alleges, among other things, that “LIV paid
`significant sums of upfront cash and made false representations” to TOUR members (including
`the Player Plaintiffs) “to induce their breach of the agreements with the TOUR.” Id. ¶ 58.
`
`B.
`The TOUR’s subpoenas to PIF and Mr. Al-Rumayyan
`During the first status conference on August 18, LIV’s counsel stated that “to the extent
`there’s appropriate discovery of [PIF], we will find a way to cooperate with that.” Dkt. 148 (The
`TOUR’s Motion to Compel Compliance with Subpoenas) at 5. LIV’s counsel added that they
`would “never insist that the TOUR do any sort of formal service” and that discovery of PIF would
`“come together swimmingly.” Id.
`After the status conference, the TOUR promptly negotiated with counsel for PIF and Mr.
`Al-Rumayyan a letter agreement in which they agreed to treat the TOUR’s subpoenas “as if the
`PGA Tour had personally delivered a copy of” the subpoenas to Mr. Al-Rumayyan or an officer
`or managing agent of PIF in the United States. Id. Consistent with this agreement, the TOUR then
`served the subpoenas. Id. The subpoenas seek evidence regarding, among other things, PIF and
`Mr. Al-Rumayyan’s involvement in recruiting professional golfers to join LIV. Id.
`In response, both PIF and Mr. Al-Rumayyan refused to produce any documents
`whatsoever or appear for deposition. Id. at 6. Both maintained that no court in the United States
`has jurisdiction over them, they are immune from compulsory process, and they have no
`information or documents relevant to the case. Id.
`The TOUR then filed its Motion to Compel Compliance with the Subpoenas against PIF
`and Mr. Al-Rumayyan in October. See Dkt. 142 (Notice of Motion to Compel) at 2. PIF and Mr.
`Al-Rumayyan opposed the motion and sought to quash the TOUR’s subpoenas based on their
`assertion that the Court lacks personal jurisdiction over PIF under the Foreign Sovereign
`Immunities Act (FSIA) and lacks personal jurisdiction over Mr. Al-Rumayyan under principles of
`common law immunity. Dkt. 166 (PIF and Mr. Al-Rumayyan’s Motion to Quash) at 7–12. PIF
`argued that it was immune from suit because its “conduct [was] not the basis of the lawsuit or
`counterclaim.” Id. at 9. In other words, PIF and Mr. Al-Rumayyan argued that since they were
`merely subpoena recipients, and not parties to the lawsuit, the FSIA immunized them and none of
`
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`the exceptions to the FSIA applied.2 Magistrate Judge van Keulen heard argument on the motion
`to compel and to quash on January 13, 2023, see Dkt. 217 (Minute Entry), but has not yet ruled
`on the merits of PIF and Mr. Al-Rumayyan’s jurisdictional objection.
`
`C.
`The Shareholders’ Agreement and other recent discovery
`After the TOUR moved to compel compliance with its subpoenas to PIF and Mr. Al-
`Rumayyan, it received discovery showing that LIV was not alone in inducing TOUR players to
`breach their contracts with the TOUR. On December 21, after the deadline for substantially
`completing document production, after briefing had closed on the TOUR’s motion to compel, and
`after repeated requests from the TOUR, LIV produced the Subscription and Shareholders’
`Agreement (“Shareholders’ Agreement”).
`Critically, the Shareholders’ Agreement—signed by Mr. Al-Rumayyan—reveals that PIF
`was required to and did, in fact, approve the lucrative LIV contracts that interfered with the
`TOUR’s contracts with its players. Proposed Amended Counterclaim ¶¶ 29-34. Indeed, under the
`Shareholders’ Agreement, LIV
`
`
`
` Dkt. 208-2 (The
`TOUR’s Supplemental Memorandum in Support of Motion to Compel) at 3. Similarly, the
`Shareholders’ Agreement stated that
`
`
`
`
`. Id. In short, PIF controls the conduct of LIV’s lawsuit against the TOUR.
`Other recent discovery produced by LIV in this case likewise confirms PIF and Mr. Al-
`Rumayyan’s critical role in brokering deals with TOUR players:
`
`In
`, Mr. Al-Rumayyan
`to
`
` the Managing Director of LIV
`
`
`
`2 The TOUR continues to reject this argument. That said, the TOUR’s current proposed
`amendment to its counterclaim, which renders PIF and Mr. Al-Rumayyan parties to the case,
`conclusively disposes of PIF and Mr. Al-Rumayyan’s jurisdictional objection.
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`. Dkt. 169 (Tour’s Reply in Support of Motion to
`
`Compel) at 4-5.
` PIF and Mr. Al-Rumayyan
` Id. at 4.
`
` Mr. Al-Rumayyan
`
` PIF requested from LIV the
`
` Id. at 5.
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`. Yeats-Rowe Decl. Ex. C at LIV000299872.
`To sum up, PIF and Mr. Al-Rumayyan recruited players; decided how much to pay them;
`assured them about their positions and about indemnification from suit by PIF; and controlled the
`conduct of this litigation undertaken by PIF’s lawyers. Accordingly, the TOUR now seeks leave
`to amend its counterclaim to add PIF and Mr. Al-Rumayyan as counter-defendants.
`
`III. LEGAL STANDARD
`Federal Rule of Civil Procedure 21 provides that, “[o]n motion . . . the court may at any
`time, on just terms, add . . . a party.” The standard for amendment to add new parties under Rule
`21 is identical to the standard for amendment under Rule 15(a)(2). In re Snap Inc. Sec. Litig., 394
`F. Supp. 3d 1156, 1157 (C.D. Cal. 2019). Courts “grant motions to add parties at the early stages
`of litigation almost as a matter of course since the liberal standard of Rule 15 also applies to
`Rule 21 motions.” De Malherbe v. Int’l Union of Elevator Constructors, 438 F. Supp. 1121, 1128
`(N.D. Cal. 1977); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).
`In deciding whether to grant leave to amend, courts consider (1) “undue prejudice to the
`opposing party by virtue of allowance of the amendment”; (2) “futility of amendment”; (3)
`“undue delay”; (4) “bad faith or dilatory motive on the part of the movant”; and (5) “repeated
`failure to cure deficiencies by amendments previously allowed.” Dean Markley USA, Inc. v.
`
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`Cenveo Corp., 2015 WL 1843708, at *1 (N.D. Cal. 2015). The party opposing amendment bears
`the “burden [of] demonstrat[ing] that leave to amend should be denied.” Giuliano v. SanDisk
`Corp., 2014 WL 4685012, at *7 (N.D. Cal. Sept. 19, 2014).
`
`IV. ARGUMENT
`All the Rule 15 factors tip sharply in favor of granting the TOUR’s motion for leave to
`add PIF and Mr. Al-Rumayyan as counter-defendants.
`
`A.
`Amendment will not unduly prejudice any opposing party.
`“The consideration of prejudice to the opposing party . . . carries the greatest weight.”
`Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Because PIF, Mr. Al-
`Rumayyan, and Plaintiffs cannot establish any prejudice, “there exists a presumption under Rule
`15(a) in favor of granting leave to amend.” Id. (emphasis in original).
`
`1.
`PIF and Mr. Al-Rumayyan cannot establish any prejudice.
`PIF and Mr. Al-Rumayyan cannot show any prejudice for at least three reasons.
`First, an amendment to include PIF and Mr. Al-Rumayyan as counter-defendants should
`come as no surprise given their direct involvement in the actions underlying the TOUR’s tortious
`interference counterclaim and the TOUR’s diligent efforts to obtain documents from them since
`the first status conference in August. The counterclaim turns on LIV’s unlawful efforts to recruit
`TOUR members and induce them to breach their contracts with the TOUR through extravagant
`guaranteed contracts. The recently produced Shareholders’ Agreement—signed by Mr. Al-
`Rumayyan—confirms that PIF was required to and did, in fact, approve these LIV contracts.
`Other documents in this case confirm that PIF and Mr. Al-Rumayyan brokered business
`deals for LIV by recruiting players in the United States and deciding on the terms of their LIV
`contracts. Mr. Al-Rumayyan
`
`
`
`Rumayyan also
`Moreover, Mr. Al-Rumayyan
`
`. See Section II.C., supra. PIF and Mr. Al-
`. Id.
`
`
` Id.
`
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`Second, any prejudice that PIF and Mr. Al-Rumayyan might claim from being added as
`counter-defendants is mitigated by the fact that (1) PIF controls the conduct of this litigation and
`(2) both are represented by the same attorneys from Quinn Emanuel and Gibson Dunn for
`Plaintiff LIV. In other words, LIV’s attorneys can readily update PIF and Mr. Al-Rumayyan on
`the status of the case and help them mount a defense against the same tortious interference
`counterclaim being asserted against Plaintiffs.
`To the extent that LIV, PIF, or Mr. Al-Rumayyan complain about any delay in adding
`them, that delay is solely attributable to PIF and Mr. Al-Rumayyan’s ongoing foot-dragging in
`complying with the subpoenas and producing relevant discovery. Indeed, according to LIV, PIF
`has expressly refused to comply with a request from LIV to provide documents necessary for LIV
`to fulfill its discovery obligations in responding to the TOUR’s documents requests to LIV. See
`Dkt. 228 (Joint Status Report) at Ex. C, p. 3 (“LIV asked PIF and [Mr. Al-Rumayyan] whether
`they would be willing to produce documents and information as you have requested, and PIF and
`[Mr. Al-Rumayyan] said they would not . . .”).
`Third, to the extent that PIF and Mr. Al-Rumayyan complain about the burden of
`complying with their discovery obligations once added as parties, “the need for additional
`discovery is insufficient by itself to deny a proposed amended pleading.” Sinclair v. San Jose
`Unified Sch. Dist. Bd., 2021 WL 2948871, at *3 (N.D. Cal. July 13, 2021). In any event, PIF and
`Mr. Al-Rumayyan will need to participate in discovery in this case. During a status conference,
`the Court previously expressed its “hope[] that . . . [LIV] can find a way to assure [the TOUR]
`that they are getting the documents that they are entitled to as if it were a subpoena and it had the
`same force and consequences as if it were a subpoena.” Dec. 16, 2022 H’rg Tr. at 17:22–18:1.
`LIV’s assertion that it “will produce documents” based on its own choosing “only goes so far,
`because [the TOUR’s counsel] is still going to be trying a case based on what . . . [PIF] deigned to
`let [the TOUR’s counsel] see.” Id. at 18:2–5. Thus, any additional burden that PIF and Mr. Al-
`Rumayyan might face will not be undue given their importance to the TOUR’s counterclaim.
`In sum, PIF and Mr. Al-Rumayyan cannot claim any prejudice given their significant
`involvement with inducing TOUR members to breach their contracts with the TOUR, their
`
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`counsel’s role in the litigation from its inception, and Plaintiffs’ false assurances to the Court that
`they would cooperate in discovery. Any “[b]ald assertions of prejudice” by them “cannot
`overcome the strong policy reflected in Rule 15(a) to facilitate a proper disposition on the merits”
`of the TOUR’s counterclaim. Hurn v. Ret. Fund Tr. of Plumbing, Heating and Piping Indus. of S.
`Cal., 648 F.2d 1252, 1254 (9th Cir. 1981).
`
`2.
`Plaintiffs cannot establish any prejudice.
`Likewise, Plaintiffs cannot establish any prejudice. The TOUR’s proposed amendments
`do not change the “theories of the case or the claims asserted” against Plaintiffs. Dean Markley,
`2015 WL 1843708, at *2. Indeed, the TOUR is advancing its same counterclaim for tortious
`interference against PIF and Mr. Al-Rumayyan.
`Insofar as Plaintiffs complain that the addition of PIF and Mr. Al-Rumayyan will affect
`the case schedule, that is a problem of LIV’s own making. LIV acted along with, and at the
`direction of, PIF and Mr. Al-Rumayyan in interfering with the TOUR’s contracts. And it was LIV
`that belatedly produced the Shareholders’ Agreement—the key document confirming PIF’s and
`Mr. Al-Rumayyan’s significant role in inducing TOUR players to breach their contracts. Any
`effect that the addition of PIF and Mr. Al-Rumayyan as parties may have on the case schedule is a
`result of PIF, Mr. Al-Rumayyan’s, and LIV’s decisions. Thus, the prejudice factor weighs in
`favor of granting leave to amend.
`
`B.
`Amendment is not futile.
`“[A] proposed amendment is futile . . . only if no set of facts can be proved under the
`amendment to the pleadings that would constitute a valid claim or defense.” Unicorn Energy
`GMBH v. Tesla Inc., 2022 WL 16528138, at *2 (N.D. Cal. Oct. 28, 2022). PIF and Mr. Al-
`Rumayyan cannot meet this high standard. As detailed in the proposed amended counterclaim,
`PIF and Mr. Al-Rumayyan knowingly induced various TOUR members to breach their TOUR
`contracts. These allegations are sufficient. Indeed, LIV did not move to dismiss the TOUR’s
`counterclaim against it, based on the same allegations, for failure to state a claim.
`To the extent that PIF and Mr. Al-Rumayyan re-assert their sovereign immunity and
`personal jurisdiction defenses, such an assertion on its own is not enough to meet the “heavy
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`burden of proving futility of amendment.” Id. Moreover, PIF’s main argument in support of its
`claim to sovereign immunity in response to the TOUR’s motion to compel is that its conduct was
`“not the basis of the lawsuit or counterclaim.” Section II.B., supra. Because the TOUR now seeks
`to add PIF as a party to the counterclaim, PIF’s core arguments in support of its immunity defense
`no longer apply. In other words, the TOUR does allege a “set of facts . . . that would constitute a
`valid claim” against PIF and Mr. Al-Rumayyan, and they cannot establish futility of amendment.
`Unicorn Energy, 2022 WL 16528138, at *2. As the TOUR will demonstrate in response to any
`motion to dismiss the counterclaim (and has already demonstrated in its Motion to Compel), PIF
`and Mr. Al-Rumayyan’s sovereign immunity defenses lack merit due to their commercial activity
`in the United States and the waiver exceptions to sovereign immunity. See Dkts. 148, 169, 225.
`
`C.
`The TOUR promptly sought leave to amend.
`The TOUR’s motion is timely and is based on discovery belatedly produced by LIV,
`including the Shareholders’ Agreement produced in late December. Amending a complaint based
`on “information . . . received during discovery . . . does not cause undue delay.” Story v. Midland
`Funding LLC, 2016 WL 5868077, at *4 (D. Or. Oct. 7, 2016). Moreover, the Court has not yet set
`a deadline for amending the pleadings. Thus, the TOUR’s motion is timely.
`
`D.
`There is no bad faith or dilatory motive in seeking amendment.
`Bad faith exists where the proposed amendment “will not save the complaint or the
`plaintiff merely is seeking to prolong the litigation by adding new but baseless legal theories.”
`Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 881 (9th Cir. 1999). The TOUR has brought this
`motion in good faith to ensure that its adequately alleged tortious interference counterclaim is
`decided on the merits, particularly in view of the recently produced evidence reflecting PIF and
`Mr. Al-Rumayyan’s intentional interference with TOUR contracts.
`
`E.
`The TOUR has not previously sought amendment of its counterclaim.
`Because this is the first time that the TOUR has sought to add two counter-defendants, the
`final Rule 15 factor likewise favors granting leave to amend.
`
`V.
`
`CONCLUSION
`For all these reason