Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Tel. 480-488-0102 Fax 480-488-2075 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR A NEW TRIAL ON LIABILITY AND COMPENSATORY DAMAGES

Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his Response to Defendants' Motion For a New Trial and requests that the same be denied. Pursuant to Fed.R.Civ.P. 59, Defendants have not met their burden of establishing that "the verdict is contrary to the clear weight of the evidence." Silver Sage Partners, LTD v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001). Defendants' Motion for a New Trial, and alternative request for a remittitur regarding the jury's award of compensatory damages, should be denied in its entirety for the following reasons. I. STANDARD OF LAW. Under Rule 59 of the Federal Rules of Civil Procedure, the Court "may grant a new trial if the verdict is contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial court, a miscarriage of justice." Silver
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Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001) (emphasis added); see also Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 742 (9th Cir. 2003) (a "trial court may grant a new trial only if the jury's verdict was against the clear weight of the evidence"). But, when a motion for a new trial is based on insufficiency of the evidence, a more stringent standard applies, and a motion for a new trial may be granted on this ground only if the verdict is against the great weight of the evidence or it is quite clear that the jury has reached a seriously erroneous result. Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1229 (9th Cir. 2001). While the Court may weigh the evidence and assess the credibility of witnesses, it may not grant a new trial "merely because it might have come to a different result from that reached by the jury." Roy v. Volkswagen of America, Inc., 896 F.2d 1174, 1176 (9th Cir. 1990); see also Union Oil Co., 331 F.3d at 743 ("It is not the courts' place to substitute our evaluations for those of the jurors."). A district court may not grant a new trial simply because it would have arrived at a different verdict. Silver Sage Partners, Ltd., 251 F.3d at 819. Thus if the jury's verdict is not against the clear weight of the evidence, it will be an abuse of discretion for a district court to grant a new trial. Id. Indeed, "the trial judge does not sit to approve miscarriages of justice..., [but] a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of his own doubts in the matter." Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987) (citations omitted).

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II.

DEFENDANTS ARE NOT ENTITLED TO A NEW TRIAL ON THE ISSUE OF LIABILITY BECAUSE THE JURY'S VERDICT IS NOT AGAINST THE CLEAR WEIGHT OF THE EVIDENCE. Defendants first argue that they are entitled to a new trial regarding liability because the

"clear weight of the evidence is that Plaintiff consented, both contractually and through his conduct, to the use of his name of the FUBU apparel." (See Motion at p. 2-3). Defendants do not set forth any new argument regarding why they are entitled to a new trial on the issue of liability, but simply incorporate their arguments as set forth in Defendants' Motion for Judgment as a Matter and Law. Defendants argue that for the same reasons they are entitled to judgment as a matter of law, they are also entitled to a new trial. Since Defendants do not set forth any new argument, for the sake of brevity Plaintiff will simply incorporate his arguments as set forth in his Response in Opposition to Defendants' Motion for Judgment as a Matter of Law, as the reasons why Defendants are also not entitled to a new trial regarding liability. In sum, Defendants are not entitled to a new trial because the jury's verdict regarding liability is not contrary to the clear weight of the evidence, is not based upon evidence which is false, and is not necessary to prevent a miscarriage of justice. First, the evidence presented at trial shows that Plaintiff did not consent to the use of his name and likeness on the FUBU apparel through his conduct. Through Plaintiff's monitoring of the Globetrotters use of his name, Plaintiff testified at trial that Globetrotters had never before used his name and likeness on a clothing line being sold in retail stores. The undisputed evidence was that the Globetrotters never licensed Plaintiff's identity for use on a clothing line. Plaintiff had no basis to object to uses of his name and likeness to the extent his name and likeness were being put to the same use
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as they were when he was a player. A reasonable jury had substantial evidence to conclude that Plaintiff's conduct did not amount to consent because the other uses presented by Defendants (iron-ons, programs, trading cards, lunch boxes, records, comic books, and cartoons) were within those allowed by his 1975 contract. Therefore, the fact that Plaintiff did not object to those uses was irrelevant. Second, the evidence presented at trial shows that Plaintiff did not consent to the use of his name and likeness on the FUBU apparel through his 1975 player contract. The evidence at trial showed that Defendants HGI and Jackson never purchased Plaintiff's 1975 player contract. The Asset Purchase Agreement did not mention Plaintiff's older player contracts when it set out the player contracts that were part of the assets that were transferred in the sale. The testimony given at trial by the "sellers" (HGI's predecessors) was that Defendant Jackson did not inquire with them whether Plaintiff's former player contracts were being included as an asset in the sale. Such testimony is extrinsic evidence regarding Defendant Jackson's intent at the time he purchased the Globetrotters. It tends to show that he was neither concerned nor interested in whether Plaintiff's former player contracts were a part of the transaction. Furthermore, even if Defendants HGI and Jackson had purchased Plaintiff's former player contracts, Plaintiff's 1975 player contract itself did not authorize HGI's use of Plaintiff's name and likeness on the FUBU apparel. The undisputed evidence at trial showed that Defendants use of Plaintiff's name and likeness on the FUBU apparel was unlike any use of Plaintiff's name and likeness while he was a player. Defendants can point to no evidence in the record showing that Plaintiff's name and likeness was used on any clothing while he was a player. The fact that Plaintiff's name and
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likeness were used on other unrelated items while he was a player is completely irrelevant. The FUBU apparel is a completely distinct and separate use than those set forth by Defendants and as a result, Plaintiff did not consent to the use of his name and likeness on the FUBU apparel through his 1975 player contract. Third, Plaintiff did not consent to the use of his name and likeness on the FUBU apparel through a collective bargaining agreement. Defendants fail to point to any evidence introduced at trial regarding the CBA that would support their entitlement to a new trial. There was no evidence presented at trial that the CBA was in effect at the time of importance and upon the parties in this litigation. Defendants did not carry their burden, in asserting the affirmative defense that Plaintiff consented through the CBA, to present such evidence. Again, if

Defendants assertion that a party is not allowed to change its position on an issue during litigation were to ring true, then Defendants themselves are prevented from now making the argument that the CBA does apply. Defendants have argued throughout the litigation and in pretrial motions that the CBA did not apply, and through their own logic should not be heard to claim now that it does apply. As a result, Defendants are not entitled to a new trial. III. DEFENDANTS ARE NOT ENTITLED TO A NEW TRIAL, NOR A REMITTITUR, ON THE ISSUE OF COMPENSATORY DAMAGES BECAUSE THE JURY'S VERDICT IS NOT AGAINST THE CLEAR WEIGHT OF THE EVIDENCE AND IS NOT EXCESSIVE. Generally, a jury's award of damages is entitled to great deference, and should be upheld unless it is "clearly not supported by the evidence" or "only based on speculation or guesswork." Henry v. Lehman Commer. Paper, Inc., 471 F.3d 977, 1001 (9th Cir. 2006). But, when

reviewing a jury's award of damages on a state law claim over which the district court exercised
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supplemental jurisdiction, the role of the district court is to determine whether the jury's verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered. Ortiz-Del Valle v. NBA, 42 F. Supp. 2d 334, 341 (D.N.Y. 1999); See also Leavey v. UNUM/Provident Corp., 2006 U.S. Dist. LEXIS 34810 (D. Ariz. 2006) (standard for reviewing jury's award of damages in diversity cases ­ citing Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989) and Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 435 (1996)). Therefore, this Court determines whether the jury's award was excessive by applying Arizona law. Leavey v. UNUM/Provident Corp., 2006 U.S. Dist. LEXIS 34810, *28-29 (D. Ariz. 2006). In Arizona, a court may not disturb a jury's damage verdict unless it finds the amount so unreasonable that it 'shocks the conscience' of the court and the verdict is the result of passion and prejudice. Id. (citing Sheppard v. Crow-Barker Paul No. 1 Ltd. P'ship, 968 P.2d 612, 622 (Ariz. Ct. App. 1998)). A verdict is the product of passion and prejudice if it is not "within the range of credible evidence." See Flieger v. Reeb, 583 P.2d 1351, 1353 (Ariz. Ct. App. 1978); see also Bahman v. Estes Homes, 710 P.2d 1087, 1090 (Ariz. Ct. App. 1985).\ A. Costs. First, Defendants argue they are entitled to a new trial, or at least a remittitur, because the jury did not make any deductions for Defendant GTFM's costs and expenses. It is undisputed that Plaintiff established, at a minimum, Defendants' sales bearing his name and likeness in the total amount of $783,900. Defendants then had the burden, as the jury was instructed, to prove

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by a preponderance of the evidence any expenses incurred by Defendants in producing the clothing bearing Plaintiff's name and likeness. Defendants error in asserting that, regarding their costs, they were only required to prove "it was more likely than not that they existed." (See Motion at p. 6). Defendants did not only have to prove they had costs; they had to prove by a preponderance of the evidence exactly what those amounts were. Therefore, Defendants were actually required to prove "it was more likely than not that" their costs were what Defendants purported them to be. The burden was on Defendants to convince the jury of the amount of their costs, whether or not Plaintiff submitted contradictory evidence. That is the essence of a "burden," and it is completely irrelevant whether Plaintiff submitted any contradictory evidence. By not subtracting anything for

Defendants' costs the jury did not "conclude that it cost nothing to produce and market the FUBU apparel bearing Plaintiff's name." That is where Defendant's are misguided in their argument. Instead, by not subtracting anything for Defendants' costs, the jury concluded that Defendants had not met their burden of proving the exact amount of their costs. Defendants first point to the testimony of Bruce Weisfeld and Larry Blenden as evidence of their costs for a percentage payment to Samsung and for overhead. However, as Defendants also point out, both were interested parties who had a stake in the outcome of this litigation. Bruce Weisfeld is the co-owner of GTFM and Larry Blenden is GTFM's general counsel. Both gave general testimony about approximate costs to manufacture goods. For example, Mr. Weisfeld testified regarding a 17% overhead which was "the general overhead of running the office and the selling, the cost associated with selling the product, managing the product. For
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example, salaries, advertising, back office..." (See Motion at p. 7) (emphasis added). Also, Mr. Weisfeld testified the overheard was required to "manufacture, market and sell" items in the Globetrotters line. (Id.). However, neither Mr. Weisfeld nor Mr. Blenden brought any

documentary evidence to list what exactly compromised "overhead." Nor did they bring any documentary evidence or testify regarding the amounts expended for the Globetrotters line for "running the office," "salaries," "advertising," "back office," "everything associated with making the product and selling it," "manufactur[ing]," "market[ing]," and "sell[ing]." Not one dollar amount was given at trial, either through testimony or documentary evidence, regarding the amount of cost for advertising or back office or marketing or salaries or running the office, etc. The only evidence was testimony from Mr. Weisfeld and Mr. Blenden about approximate percentages. The Defendants gambled solely on the chance that the jury would take Mr. Weisfeld's and Mr. Blenden's `word for it.' The problem is that both men, especially Mr. Weisfeld who is co-owner of GTFM, will benefit from a reduction in the damages award ­ a bias that would be obvious to the jury. The jury is certainly able to take into account the bias of Mr. Weisfeld and Mr. Blenden, as well as the undisputed fact that their testimony regarding a 13% payment to Samsung and a 17% overhead cost was presented in terms of "examples" and only in terms of what "generally" happens and what is "generally" included in those alleged costs. There was absolutely no documentary evidence nor any other independent evidence regarding those alleged costs. The jury could have easily determined that Defendants failed to prove those alleged costs by a preponderance of the evidence and were then entitled to deduct
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nothing. Such a conclusion does not 'shock the conscience' of the court and is not the result of passion and prejudice. As a result, Defendants would not be entitled to a new trial based upon the fact that the jury did not make a deduction for `Samsung' or `overhead,' nor are Defendants entitled to a remittitur for those amounts. Second, Defendants state they should also be granted a new trial, or at least a remittitur, for the jury's failure to make deductions for "GTFM's actual costs of goods sold (or "landed duty paid" or "LDP")." Defendants point to only one piece of evidence, trial exhibit 1094A, which they apparently believe is all they needed to meet their burden of proving actual costs by a preponderance of the evidence. Defendants try to lend support to their argument on this issue by again pointing to rulings made by the Court, which are not part of the evidence and which the jury was not instructed on. Exhibit 1094A is merely a summary exhibit, and is only one single page long. What the Court ruled regarding whether the summary was accurate for purposes of its admission into evidence, and what the Court ruled regarding limiting Plaintiff's counsel's comments on the summary exhibit in closing, is irrelevant. Defendants may be entitled to a new trial or remittitur under Rule 59 only if the verdict is clearly not supported by the evidence. See Henry v. Lehman Commer. Paper, Inc., 471 F.3d 977, 1001 (9th Cir. 2006). The Court instructed the jury regarding summary exhibits (the only one of which was Defendants cost chart - exhibit 1094A) as follows: "Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves."

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Although Plaintiff's were limited by the Court in closing argument regarding arguing the accuracy of the summary chart, the jury was never instructed that the summary chart was, in fact, "accurate." Instead, the jury was instructed that the summary cost chart is "only as good as the underlying evidence" that supports it, and to give the chart "only such weight" as they thought the underlying evidence deserved. The problem is that Defendants never introduced all of the underlying evidence to Exhibit 1094A, which was the only evidence admitted at trial of their "actual costs." Since the jury had no underlying evidence to analyze, they could give it no `weight.' The failure to introduce the underlying evidence to their summary costs chart is solely the fault of the Defendants. However, they are now attempting to argue that the summary chart alone is sufficient to establish their actual costs by a preponderance of the evidence because the jury was somehow required to believe it was accurate, even without being provided the benefit of knowing exactly what the summary chart was summarizing. Defendants argument that the jury was somehow required to take the cost numbers presented on Exhibit 1094A as affirmatively established as accurate is directly contrary to the jury instructions. Plaintiff never stipulated to the accuracy of the summary cost chart. Merely because the summary cost chart was admitted does not require the jury to make a finding that the Defendants actual costs had been established by the preponderance of the evidence. Therefore, pursuant to the Court's own jury instruction, to which the Defendants agreed it was appropriate to give, the jury was unable to give much, if any, weight to Exhibit 1094A. There were five styles in which Exhibit 1094A purported to `summarize' the actual costs from the sales detail reports. However, Defendants only introduced the sales detail reports
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summarized by Exhibit 1094A for two of the styles. Furthermore, Defendants themselves admitted and argued at trial that Exhibit 24, which was authored by Defendants and which supposedly calculated the total sales of styles involving Plaintiffs name and likeness, contained a typo. Also, Plaintiff presented evidence at trial that Defendant HGI filed a lawsuit against Defendant GTFM based upon allegations that Defendant GTFM was not providing accurate accounting of the sales of the Globetrotters clothing line. Evidence was presented that

Defendant HGI was so convinced that Defendant GTFM was not providing accurate records that Defendant HGI attempted to have Defendant GTFM's records audited. Plaintiff also presented evidence that the sales regarding style H3003, i.e. H3002 (as Defendants claim), were purposely underreported by Defendants in trial Exhibit 24. In sum, there was substantial evidence presented by Plaintiffs to strongly suggest to the jury that Defendants `accounting' regarding the FUBU apparel could not be trusted. Despite such evidence, Defendants chose not to introduce all of the underlying evidence to their summary costs chart, instead again expecting that the jury would simply `take their word for it' and believe it was completely accurate. Although Defendants did admit the underlying cost evidence for two styles listed on the summary cost chart, three of the styles had no underlying evidence for the jury to evaluate. Since the jury could give the summary cost chart only such weight as they thought the underlying evidence deserved, the jury could not give the chart much of any weight. The jury had no underlying evidence, for three of the five styles, to weigh and therefore was free to give no weight to the summary costs chart itself.

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Rather than ignoring the jury instructions, as the Defendants argue, it is clear that the jury precisely followed the jury instructions that were given. Defendants failed to prove the amounts of their actual costs with any reasonable certainty. As a result, Defendants failed to prove their actual costs (or "LDP") by a preponderance of the evidence. Since Defendants failed to meet their burden, the jury could not deduct anything for their actual costs. Again, such a

conclusion does not 'shock the conscience' of the court and is not the result of passion and prejudice. Therefore, Defendants would not be entitled to a new trial based upon the fact that the jury did not make a deduction for `actual costs,' nor are Defendants entitled to a remittitur for those amounts. B. Sales Revenue Attributable To Factors Other Than Appropriation Of Plaintiff's Name And Likeness. Lastly, Defendants argue that Plaintiff's compensatory damages award should be reduced to zero because the evidence at trial showed that sales of the FUBU apparel were attributable to factors other than the appropriation of Plaintiff's name and likeness. Defendants spend all of one small paragraph setting forth the "clear weight of the evidence" that entitles them to a new trial regarding damages based on this issue. Defendants believe they are entitled to a new trial, or at least a remittitur in the damages to zero, because Mr. Weisfeld and Mr. Aurum, co-owners of GTFM, testified that consumers do not care what is on the back of their clothing. Instead, Mr. Weisfeld and Mr. Aurum testified that they "believe" consumers bought the Globetrotter apparel bearing Plaintiff's name and likeness because of the color of the jersey, or because of the words "Harlem" and "Globetrotters," and not because Plaintiff's name and number was on the front and back of the clothing. How convenient. It is incredible that Defendants would
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request a new trial, or that the Court reduce Plaintiff's damages to nothing, based solely upon that testimony. Do not forget that Defendants presented no testimony from consumers

themselves, nor any consumer surveys, showing that consumers purchased the FUBU apparel because of factors other than Plaintiff's name and likeness appearing on the clothing. Furthermore, during the testimony of Mr. Weisfeld and Mr. Aurum, neither of them gave a basis for their "belief" that consumers purchased the FUBU apparel because of the color or the words "Harlem" and "Globetrotters" and not because of Plaintiff's name and likeness. Again, Defendants attempt to shift their burden to the Plaintiff by arguing "Plaintiff presented no evidence to suggest that any individual consumer purchased a FUBU/Globetrotters jersey because it had Plaintiff's name on the back." However, it is presumed that the FUBU apparel sold because it bore Plaintiff's name and likeness. It is then Defendants burden to provide credible evidence that the sales were attributable to factors other than the appropriation of Plaintiff's name and likeness. Defendants had to prove by a preponderance of the evidence that the sales were attributable to other factors (i.e. it was more likely that consumers purchased the FUBU apparel because of the color or the words "Harlem" and "Globetrotters" rather than the fact that Plaintiff's name and/or number appeared on the clothing) in order to receive a deduction for such sales. The undisputed evidence is that Plaintiff Lemon's apparel outsold all other FUBU apparel bearing other player's names and likenesses. Furthermore, Plaintiff

presented evidence that Plaintiff's name and/or number appeared on the front of many styles. Defendants produced barely a scintilla of evidence suggesting that the FUBU apparel sold for reasons other than the appearance of Plaintiff's name and number.
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As a result,

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Defendants failed to meet their burden, and the jury was unable to deduct anything for `sales attributable to factors other than the appropriation of Plaintiff's name and likeness.' Any other conclusion by the jury would actually be against the clear weight of the evidence. As a result, the damages verdict does not 'shock the conscience' of the court and is not the result of passion and prejudice. Therefore, Defendants would not be entitled to a new trial based upon the fact that the jury did not make a deduction for `sales attributable to factors other than the appropriation of Plaintiff's name and likeness,' nor are Defendants entitled to a remittitur to zero. IV. CONCLUSION. Based upon the foregoing, the jury's verdict in favor of Plaintiff on the issue of liability was not against the clear weight of the evidence. Furthermore, the jury's compensatory

damages award did not 'shock the conscience' of the court and was not the result of `passion and prejudice.' Therefore, Defendants request for a new trial, and alternative request for a remittitur of the damages, should be denied. RESPECTFULLY SUBMITTED this 16th day of March 2007.

ROSENQUIST & ASSOCIATES

By:

/s/ Anders Rosenquist Anders Rosenquist, Jr. Attorney for Plaintiff Meadowlark Lemon

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. 2. I hereby certify that on March 16th , 2007, a true and correct copy of the foregoing RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR A NEW TRIAL was delivered via first-class mail to the following parties: Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Jackson Ira Sacks, Esq. Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendant GTFM, LLC Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Robert W. Goldwater, III, Esq. Jason Leonard The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260
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Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson Karl M. Tilleman P. Bruce Converse Jason Sanders Steptoe & Johnson LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson

3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 16th day of March 2007 at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer