Free Reply to Response to Motion - District Court of Arizona - Arizona

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Morgan & Morgan, P. A. th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Neal Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al. Plaintiffs, vs. Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS INTERNATIONAL, PLAINTIFFS' JOINT REPLY TO 11 INC., et al.; DEFENDANTS' OPPOSITION TO PLAINTIFFS' JOINT MOTION FOR PRE-ADMISSION OF 12 Defendants. EXHIBITS AND EVIDENCE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 excluded from the jury's consideration; 2. 3. expertise; 4. That, therefore, according to Defendants' logic, this Courts' orders regarding expert That Plaintiffs' investigator Phipps is an expert; That Plaintiffs Summary is an "expert report" requiring scientific or specialized Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon (collectively referred to as "Plaintiffs"), hereby file this Reply to Defendants' Opposition to Plaintiffs' Joint Motion for Pre-Admission of Exhibits and Evidence ("Opposition"), and state as follows: Defendants' Opposition is the latest of many efforts to keep all relevant evidence of infringing sales out of the courtroom, and rests on several erroneous assumptions: 1. That relevant, admissible evidence, even Defendants' own documents, should be

disclosure deadlines were violated; 5. That there is no foundation for the underlying data.

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Much of Defendants' attack appears to be relevance (i.e. the data on the Summary is not relevant to Plaintiffs' claims). However, under F.R.E. 401 relevant evidence is evidence tending to make the existence of any fact that is of consequence to the determination of the action more probable or less probable. Pierce Packing Co. v. John Morrell & Co., 633 F.2d 1362 (9th Cir. 1980). Here, the Summary presents evidence of use and advantage. As Plaintiffs have briefed repeatedly to this Court1, none of Defendants' arguments is a basis to exclude Plaintiffs' F.R.E. 1006 Summary as Phipps is not an expert, he was disclosed to, and deposed by, Defendants before discovery cut-off, and foundations for the underlying evidence have been established, especially for FUBU's own business records (i.e. with or without Phipps, Plaintiffs may prepare F.R.E. 1006 summaries). Defendants, in another effort to label Phipps an "expert" so they can torpedo all his investigatory efforts, not just the Summary, make several new assertions in their Opposition. Defendants now assert that in the Summary Phipps makes "assumptions" about "consumer purchasing patterns," and the "market effect" of "certain styles" and "hangtags" (Opposition, Pg. 3). A cursory look at Plaintiffs' F.R.E. 1006 Summary reveals that such a characterization is mere fantasy, another "red herring," and an effort to inflame the Court to believe that Plaintiffs' have intentionally ignored this Court's order by engaging a "new" expert. But there are no "expert" opinions in the Summary. Defendants admit that Plaintiffs' Summary is "concededly done in the manner that GTFM suggested" (Opposition, Pg. 3), and Defendants have already rebutted Plaintiffs' Summary with charts of their own.2 Defendants continue to assert that Phipps' work was proffered AFTER and "because the Abalos (Plaintiffs' damages expert) was precluded" (Opposition, Pg. 3), which is misleading to this Court. Phipps was disclosed on September 19, 2005 and deposed by

1 Defendants have filed severalmotions to strike and in limine motions directed at Plaintiffs' summary and at underlying evidence. 2 Defendants continued to edit their charts as late as 11/17/06 (Ex. B, Doc. #541).

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Defendants on September 23, 2005, long before Abalos "was precluded" in the ruling of June 2006. In fact, Phipps worked simultaneously, but independently of, Abalos who focused on aggregate (versus individual) sales of FUBU and HGI. Phipps investigated individual styles and
3 sales utilizing FUBU's 13 different productions, garments available in the marketplace (FUBU

produced NO samples at all), and Plaintiffs first charts were served on FUBU as early as February 18, 2005.4 Phipps investigation has never, as Defendants falsely state, focused on "why consumers bought those styles." Rather Phipps' work is based on personal observation of

FACTS: clothes bearing Plaintiffs' names on garments and on hangtags were documented in FUBU retailers--facts supported by FUBU business records, which confirm that every retailer visited by Phipps is also listed in the FUBU sales documents--hardly "assumptions" and "interpretations" as asserted by Defendants. Abalos' efforts were to ascertain aggregate, not individual sales, on the assumption that damages could be allocated by Plaintiffs themselves. Phipps has never acted as a replacement expert for Abalos or any other theory, but from the start was engaged to document styles and sales. A. F.R.E. 403

Defendants assert that the final Summary of grand totals (Exhibit H) is "prejudicial, inaccurate and will mislead the jury" (Opposition, Pg. 6), but Plaintiffs section H of the Summary is simply a total of the other subparts and inaccuracy is not a basis for exclusion. (See Plaintiffs' Motion, Pg. 10, Doc. #474). B. RELEVANCE

Defendants continue to improperly assert that Plaintiffs must show "that consumers purchased the FUBU/HGI apparel as a result of Plaintiffs' name on the apparel," notwithstanding this Court's Order, case law, and the Restatement 2d of Unfair Competition § 49. But this is not

3

These business records are Ex. "A" to Plaintiffs' Motion for Pre-Admission of F.R.E. Summary (Doc. #474).

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Plaintiffs' burden, it is Defendants- to show what sales are not attributable to use.

(See

Plaintiffs' Motion, Doc. # 474, Pg. 11 with citations). Plaintiffs' burden, as this Court noted in its Order is to show gross revenue (see Plaintiffs' Response, Doc. # 523 with quotations from the Order). C. FUBU'S LICENSEE SALES

Defendants state that Plaintiffs' Summary is defective because it reflects sales of FUBU's licensee, Jordache, not FUBU's "mere" royalty paid to it by, Jordache, and that it is, therefore, Plaintiffs' fault that any inaccuracy exists. FUBU counsel Anand's own words make it clear why Plaintiffs' summary of sales directly from FUBU records is reasonable. FUBU counsel stated in a telephonic hearing in September 2005 that FUBU allowed sub-licensees to copy samples, manufacture garments and pay a royalty with NO PAPERWORK: "the way that licensees work is that they see samples from GTFM, LLC and if they like those samples they go and they manufacture those samples and they sell those samples and they pay a royalty to FUBU. There's no paperwork, there's no purchase orders." (Doc. #518, Ex. C, Transcript of 9/30/05 Hearing, Pg. 30, 35). Defendants should bear any burden of inaccuracy in these numbers. D. THE SUMMARY SUB-PARTS OR CHARTS

Plaintiffs have explained each of the sections attacked by Defendants and the underlying admissible evidence for each (Plaintiffs' Motion, Pg. 7-10, Doc. #474). Defendants state at FN6 that "the first time the Sales Chart was produced to Defendants was with the summary judgment motions in November 2005." This is, of course, patently false as noted in Plaintiffs' Motion and documented by exhibits (see Plaintiffs' Motion, ¶ 2, Doc. #474), including Defendants' own letter of 4/8/05: "we will not review the accuracy of the worksheet you prepared...we have no obligation to review opposing counsel's work product and confirm its accuracy." Motion, Ex. F, Doc. #474). (Plaintiffs'

Furthermore, Plaintiffs' have briefed the propriety of using

4

See Ex. I to Plaintiff's Motion (Doc. # 474).

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independent evidence which is not "discovery" and is timely under Rule 26(e) which has no deadline for supplemental disclosures. (See Pg. 2, Doc. #518; Pg. 11, Doc. #412). "A discovery cutoff date does not affect admissibility of evidence obtained outside of the discovery process of the case in which the cutoff date is ordered." Whittaker Corp. v. Execuair Corp., 736 F.2d 1341, 1347 (9th Cir. 1984)(citation omitted; cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34, 81 L.Ed.2d 17, 104 S.Ct. 2199 (1984)(distinguishing "information obtained through use of the discovery process" from "the identical information...gained through means independent of the court's processes," and discusses the search for evidence on its own through means not within the meaning of "discovery" in Rule 26(a)(5) of the federal Rules of Civil Procedure. E. CHARTS "A" AND "B"

Defendants state Plaintiffs "mislabeled" chart "B" as "FUBU report" (Opposition, Pg 9). But there is no mislabeling. The sales on the chart are indeed from FUBU sales reports

produced in January 2005 and so designated in Plaintiffs' letter to FUBU on 2/16/05 (Plaintiffs' Motion, Ex. I, Doc. #474). They came directly from the FUBU reports, as opposed to Chart A, which came directly from the HGI letter of 10/8/03 (Plaintiffs' Motion, Ex. C., Doc. #474). FUBU states it "produced very few documents at the end of discovery, only 49 pages out of the 1690 pages that were produced" (Opposition, Pg. 9). The quantity of pages cited (49) is wrong, and the high importance of the eleventh hour disclosures ignored: Production Date 9/13/05: Bates 1369-1637 (268 pages)(Japanese and European sales for the first time and new CAD's). 9/29/05: Bates 1641-1688 (47 pages)(sales summary by style for ALL styles for the first time, and three previously undisclosed styles). 9/30/05: Bates 1689-1690 (2 pages)(two new previously undisclosed styles). Again, FUBU on 9/29/05, for the first time, provided a "sales summary detail reports by style" (Ex. A Bates 1641-1645, Plaintiffs' Motion Doc. # 474). F. CHART "C"

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This chart contains styles and sales produced by FUBU. FUBU may rebut, impeach and offer testimony as to why these revenues should not be used as profits--just as this Court ordered. The summary is just that--what was reported by FUBU. Phipps has no knowledge as to whether FUBU received ALL this money or if they split it with HGI or a sublicensee. Phipps is not an expert (see Plaintiffs' discussion at Pg. 8, 10-12, Doc. #518). FUBU's officers may carry their burden of reducing these revenues that they reported in their business records. G. CHARTS "D1" AND "D2"

These are hardly, in Defendants' words, "a selection of styles by Mr. Phipps without a basis in the record." These were styles located at retailers such as Marshalls and Bealls that are documented in FUBU's own production. The sales are divided by nine because there are nine players listed on the Legends hangtag apparently designated by FUBU. It is Defendants that chose to design, print and apply hangtags bearing Plaintiffs' names on garments because, in the words of FUBU's Weisfeld "all hangtags are marketing tools." (See PSOF, ¶¶ 10, 22, 52, 54-57, Doc. # 314). Defendants' bizarre assertion that "there is no evidence hangtags were used as marketing devices" (Opposition, Pg. 11) is not credible. Phipps testified on 9/22/05 about the presence of hangtags, and he brought physical samples to Defendants' law office, and he was videotaped. Phipps did note that one of his samples was "missing a tag" (apparently one fell off during the Madison, Wisconsin trip). Sacks Declaration at ¶ 12 (Doc. #516) states that there is "no basis in the record" for these charts, and implies Phipps whimsically made a "selection of styles." But D1 and D2 do have a basis in the record, several in fact, and the charts clearly state what they are: the item # directs one to the actual sample found in the marketplace and each is described on the schedule and photographed (See Plaintiffs' Motion, Ex. H, Doc. #474). Also, the charts have a "FUBU

document" column that states exactly where the style can be found in FUBU's business records. H. CHARTS "E" AND "F"

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Phipps did not "forget" to include these in the so-called Phipps I Analysis. Plaintiffs did not make additions to Charts A&B because they were relied on as Ex. 13D in summary judgment and Plaintiffs chose not to edit these for purposes of continuity. Charts E&F contain sales for individual styles pulled from FUBU production after the earlier summary. Again, FUBU on

9/29/05 for the first time provided a "sales summary detail reports by style" (Ex. A Bates 16411645, Plaintiffs' Motion Doc. # 474), and Plaintiffs have found "new" styles as late as 10-17-06 (yes, 2006)(see Plaintiffs' Response to Motion to Strike, Doc. #518, Pg. 3-4). Chart F is a summary of styles and sales documented in FUBU business recors, the location of which is in the "FUBU Document" column. These styles were also located by Phipps in the marketplace and are in his schedule of items (see column "Exhibit A Item #"), which documents that these garments bore hangtags, they were photographed and many were videotaped at his deposition. The "NP" simply means "not produced" by FUBU as they have provided no sales data for these styles (i.e. Defendants succeeded in reducing sales by not producing this data). Again, Defendants assert the first time they saw a chart was in summary judgment, which is easily demonstrated to be false by Plaintiffs' letter of 2/18/05 and Defendants responsive letter of 4/8/05. (See Plaintiffs' Motion, Pg. 5, Doc. #474). As far as the "Japanese Chart," Defendants state that Phipps "fails to explain where the numbers in the Japanese chart come from" (Opposition, Pg. 8) but Phipps states at ¶ 6 of his Affidavit the source of the underlying data and exactly what FUBU production the sales came from. (Ex. N, Doc. #470). The disclosure of Japanese sales chart on 9/13/05 by FUBU came after FUBU representatives testimony that there may be some sales in August 2005, but no documents had been produced by FUBU until 9/23/05 (see Plaintiffs' Motion, Doc. #474, Ex. A, Bates #1633). I. DEFENDANTS' CITATIONS

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Defendants cite to Davis & Cox v. Summa Corp., 751 F.2d 1507, 1516 (9th Cir. 1985) stating "summaries must fairly represent underlying documents" and noting the Court excluded "at least one of the compilations." What the Davis court did was exclude one compilation because it summarized a limited number of documents that the party determined "dealt" with their issue. Here, it is FUBU which produced business records that they decided were relevant, responsive or dealt with Plaintiffs' claims. hangtag quantities.
th In United States v. Wood, 943 F.2d 1048, 1054 (9 Cir. 1991), the court distinguished

FUBU has never produced one requested document as to

between charts that were properly supported, and stand alone as evidence, versus those which may still be admitted as "merely pedagogical devices." In Wood, a tax case involving a party's need to show a business purpose before taking a certain tax deduction, the district court "masked" the unsupported portions and allowed the charts use in closing arguments. It so

limited its use because the masked portions were "a misapplication of the law" as it assumed deductions were available for property even though not used in the ordinary course of business. Defendants' citation of Wood for their relevance argument is misplaced, as they continue to promote their mistaken positions that Plaintiffs must show "but for causation." J. PLAINTIFFS' ACTIONS HAVE NOT PREJUDICED DEFENDANTS

Plaintiffs have extensively briefed the lack of prejudice to Defendants. (Doc. #518, Pg. 12-13; Doc. #474, Pg. 10-11). As stated in Plaintiffs' Response to Defendants' In Limine Motion to Exclude The Analysis of Oliver Phipps from Trial (Doc. # 457) Phipps was timely disclosed weeks before his deposition, in a letter of 9/15/05, and in a Rule 26 Disclosure dated 9/19/05 (Ex. D, Doc # 457). Plaintiffs even overnighted exhibits to Defendants before Phipps' deposition as a courtesy (Ex. E, Doc. # 457). Defendants never asked to depose Phipps. Plaintiffs, in an effort to make a

record, set Phipps' deposition and on September 23, 2005 flew him, six boxes of exhibits, and

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his Asian investigator (Gallo) to Madison, Wisconsin. Plaintiffs went to extraordinary lengths to grant Defendants access to him and his findings. Even if Defendants were truly "surprised" by the "Sales Chart," the result is harmless as it is simply a summary of Defendants' own sales reports. GTFM had stated in its 4-8-05 letter (Ex. F, Plaintiffs' Motion, Doc. # 474): "No summary of styles and sales organized by players' names exists" (¶8); "...no Sales Detail Reports (by Style) exist for the women's line" (¶ 11); and "we have produced all responsive documents..." (¶12). That is, the "Sales Chart" has information produced by Defendants. Defendants' subsequent disclosures of key sales data so close to the discovery deadline effectively prevented Plaintiffs from better analyzing their last minute documents. (Sales data was produced 13 times, including on 9-13, 9-21, 9-29, and 9-30-2005; Ex. F to Motion, Doc. #474). On September 13, 2005, Defendants finally disclosed Japanese and European sales--too late for any further "discovery" from Defendants. As for Plaintiffs' supposed failure to disclose the documents upon which the summary data relies (purportedly in violation of F.R.E. 1006), Phipps' Affidavits identify the underlying data located in Ex. 13 of Plaintiffs' Motion for Summary Judgment. The "Phipps analysis" lingo of Defendants' Motion places too much emphasis on Phipps and diverts attention away from the fact that the data is Defendants'. Plaintiffs diligently expended time and money to document infringing sales by dispatching its investigators not only to the Philippines but to Madison, Wisconsin to testify as to what was located (PSOF, ¶ 22, Doc. # 314). Defendants complain that they have only examined the garments two times (Sacks' Declaration, Doc. # 516, ¶ 18), but they forget the other occasions where samples were presented at various depositions, including of FUBU representatives themselves, who examined samples and compared them to their own sales records. In addition to multiple examinations of Plaintiffs' garment samples, see also Plaintiffs' Response to Defendants' Motion to Strike Phipps

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"New" Analyses, where FUBU's Weisfeld already testified on 8/2/05 as to a cost chart (Plaintiffs' Response, Doc. # 518, Ex. A, Pg. 4), the same deposition where Weisfeld inspected garment samples, hangtags, CAD's and FUBU sales records. Plaintiffs have offered alternate proposed jury instructions so the Summary may or may not be considered as substantive evidence. As previously briefed, there is no prejudice because the underlying sales records are FUBU's, Defendants may rebut with their own evidence, Defendants have submitted their own charts, and Defendants may impeach Phipps and the totality of his investigation. K. HANGTAGS

Three FUBU representatives testified about hangtags in 2005 and about the purpose of hangtags. Defendants assertion in their Motion that they could have retained a hangtag expert is especially troubling given FUBU counsel Sacks' earlier statement that "I don't think hangtag data exists." (Plaintiffs' Response, Pg. 8, Doc. #220). Now, FUBU asserts that it is prejudiced

because it should have hired an expert to testify that no one bought any clothes because of the hangtags. First, hangtags have been a central issue since day one and FUBU's position is on the record. Second, even if FUBU could have conceivably purchased such an expert opinion, it is irrelevant to right of publicity elements which must show use and advantage. See Pooley v. National Hole in One Association, 89 F.Supp.2d 1108 (D.Ariz.1989). Plaintiffs should be able to put on all hangtag evidence. There is ample authority for the proposition that juries may assess damages using any and all evidence and that juries may perform their own calculations. Additionally, the court may assist in calculations. (Plaintiffs' Motion, Sec. III with citations, Pg. 11-12, Doc. #474). The

burden of uncertainty is on the wrongdoer.

Contemporary Mission, Inc. v. Famous Music

Corporation, 557 F.2d 918 (2d Cir. 1977) citing Sinclair Rfg. Co. v. Jenkins Co., 289 U.S. 689, 697,

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53 S.Ct. 736, 739, 77 L.Ed. 1449 (1933), wherein the Supreme Court stated: "The law will make the best appraisal that it can, summoning to its service whatever aids it can command." The primary evidence utilized to construct Plaintiffs' Summary is available to Defendants for comparison to test correctness (i.e. it is mostly theirs), and the agent who prepared them is available for cross-examination. L. PRE-ADMISSION VIA MOTIONS AND A BENCH BRIEF IS APPROPRIATE

Plaintiffs moved for pre-admission on November 2, 2006 and such a motion need not necessarily be made as a Motion In Limine. Defendants cite no authority for their assertion that Plaintiffs' Motion should be styled a three page Motion In Limine (Opposition Pg. 15), and, indeed, Defendants have filed duplicative lengthy motions to strike accompanied by duplicative, lengthy "Declarations of Ira Sacks" (Doc. #469, #470), essentially impeaching and rebutting the Summary and its foundational evidence--an effort more appropriate for trial. Plaintiffs' Motion in excess of three pages is proper considering that five foundational elements must be established by Plaintiffs to admit F.R.E. 1006 charts and Plaintiffs have done so (Plaintiffs' Motion, Doc. #474, Pg. 3-4 with citations). Lastly, as to Plaintiffs' failure to attach unpublished authorities as appendices, Plaintiffs
th attach herewith United States v. LeFevbre, 29 F.3d 636 (9 Cir. 1994) and United States v. Whistler, th 139 Fed.Appx. 1 (9 Cir. 2005) with apologies. (Ex. A).

Wherefore, Plaintiffs respectfully request the Court approve the Motion for Pre-admission and permit all Plaintiffs' relevant evidence to be used at trial. DATED this 27th day of November, 2006. By: ____/S/ Clay M. Townsend___________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 -11Document 548

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Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders ROSENQUIST & ASSOCIATES ____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys 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 November 27th first-class mail, addressed to: 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. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers,
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, 2006, a true and correct copy of the foregoing

PLAINTIFFS' JOINT REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFFS' JOINT MOTION FOR PRE-ADMISSION OF EXHIBITS AND EVIDENCE was sent by postage-prepaid

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Thorton, Hall, Haynes and Sanders 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

by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 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 27th day of November 2006, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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