The opinion of the court was delivered by: Sweet, District Judge.
Don King Productions, Inc. ("DKP") moves for partial summary
judgment against defendants James "Buster" Douglas ("Douglas")
and John P. Johnson ("Johnson") striking these defendants'
affirmative defense of unconscionability and dismissing their
counterclaims for slander and intentional infliction of
emotional distress. The motion is granted for the reasons set
The Parties and Prior Proceedings
Facts and past proceedings relating to this action are set
forth in the court's prior opinion of May 18, 1990 742 F. Supp. 741
(the "May 18 Opinion") which determined the parties'
cross-motions for summary judgment, familiarity with which is
assumed. The present motion, which followed the submission of
defendants' answer and counterclaims and their responses to
interrogatories in connection therewith, originally was made
returnable on June 19, 1990. That same day several additional
motions in limine were argued and, with the parties' blessing,
argument of this partial summary judgment motion was adjourned
until June 22 to provide the parties additional preparation
time. The motion was argued on that date, after which a
supplemental submission was received from DKP on June 27, 1990.
Standards Applicable to Summary Judgment Motions
Summary judgment is authorized if "there is no genuine issue
as to any material fact and. . . the moving party is entitled
to a judgment as a matter of law." Fed.R. Civ.P. 56(c). The
moving party bears the burden of proving that no genuine issue
of material fact exists. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986); Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988). All
ambiguities are resolved against the moving party, and all
favorable inferences are drawn in favor of the party against
whom summary judgment is sought. See Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d
142 (1970); Ramseur v.
Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Eastway
Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.
1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d
However, courts should not be reluctant to grant summary
judgment in appropriate cases. "One of the principal purposes
of the summary judgment rule is to isolate and dispose of
factually insupportable claims," Celotex Corp. v. Catrett,
477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265
(1986), thereby permitting courts to avoid "protracted,
expensive and harassing trials." Meiri v. Dacon, 759 F.2d 989,
998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88
L.Ed.2d 74 (1985).
The Unconscionable Contracts Defense
Douglas and Johnson plead as an affirmative defense that the
contracts they entered into with DKP are unconscionable. Under
New York law (which previously has been found to govern the
validity of these contracts, see May 18 Opinion at 759), a
determination of unconscionability
requires a showing that the contract was both
procedurally and substantively unconscionable
when made — i.e., "some showing of an `absence of
meaningful choice on the part of one of the parties
together with contract terms which are unreasonably
favorable to the other party.'"
Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10, 537
N.Y.S.2d 787, 791, 534 N.E.2d 824, 828 (1988) (citations
omitted and emphasis supplied). The factual contentions set
forth in the Douglas/Johnson interrogatories to support the
unconscionability defense — that the Tokyo conduct of King was
unconscionable, that King is a powerful promoter, and that
exclusive, extendable terms of the contracts are unreasonably
favorable to King — are as a matter of law insufficient.
The Douglas/Johnson contention that the contracts "became
unconscionable" after their inception owing to King's conduct
during the Tokyo fight is unavailing, as the underlined
language in Gillman illustrates. The doctrine of
unconscionability implicates the circumstances and terms of a
contract at the time of formation — not the parties'
subsequent performance under it. See State v. Avco Financial
Service of New York, Inc., 50 N.Y.2d 383, 390, 429 N.Y.S.2d
181, 185, 406 N.E.2d 1075, 1079 (1980) (referring to
"circumstances existing at the time of the making"). The Tokyo
performance by King is, of course, relevant to whether King
breached his obligations of good faith and fair dealing under
the contracts, an issue discussed at length in the May 18
Opinion and which has been reserved for trial to a jury. That
conduct has, however, absolutely no bearing on the defense of
unconscionability, which relates to substantive and procedural
fairness of a contract "when made." Gillman, 73 N.Y.2d at 10,
537 N.Y.S.2d at 791, 534 N.E.2d at 828.
Douglas/Johnson next contend that King so dominates promotion
of heavyweight fights that the Douglas — King contracts are
inherently procedurally unconscionable. That assertion, if
true, sounds more probative of an antitrust claim for
monopolization than it is demonstrative of the particularized
showing of an unfair bargaining process that is requisite to
the defense of unconscionability. Douglas/Johnson make no
allegation here that deceptive or high-pressure tactics were
employed in concluding the contracts, that contract terms were
concealed in fine print, or that there was a gross asymmetry in
the experience and education of the parties, each of whom was
represented by counsel throughout the course of their
arms-length negotiations. See May 18 Opinion at 747; cf.
Gillman, 73 N.Y.2d at 11, 537 N.Y.S.2d at 791, 534 N.E.2d at
828 (identifying relevance of these and other factors to
establishment of procedural unfairness).
At least as stated in the responses to the contention
interrogatories, the unconscionability defense does not here
implicate its primary use as "a means with which to protect the
commercially illiterate consumer beguiled into a grossly unfair
bargain by a deceptive vendor or finance company." Marvel
Entertainment Group, Inc. v. Young Astronaut Council, No.
88-5141, 1989 WL 129504 (S.D.N.Y. October 27,
1989), 1989 U.S. Dist. LEXIS 12803, at 11 (quoting Gillman v.
Chase Manhattan Bank, N.A., 135 A.D.2d 488, 491, 521 N.Y.S.2d
729, 732 (2d Dep't 1987), aff'd, 73 N.Y.2d 1, 537 N.Y.S.2d 787,
534 N.E.2d 824 (1988)). Without some definite allegation of a
defect in the contract negotiation process apart from King's
stature in the boxing field, which alone does not suggest
"inequality so strong and manifest as to shock the conscience
and confound the ...