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

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Morgan & Morgan, P.A. 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Clay M. Townsend, Fl. #023414 Brandon S. Peters, Fl. #022641 Keith R. Mitnik, Fl. #436127 Attorneys for Neal Plaintiffs Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 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 PLAINTIFFS' RESPONSE TO DEFENDANTS IN LIMINE MOTION TO EXCLUDE EVIDENCE RELATING TO PLAINTIFFS' MENTAL AND EMOTIONAL DISTRESS

Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon, through their respective undersigned counsel, hereby submit their joint Response to Defendants In Limine Motion to exclude evidence relating to Plaintiffs' mental and emotional distress. Defendants' argue for the exclusion of evidence regarding the mental and emotional distress experienced by Plaintiffs stating that such evidence is irrelevant and would mislead the jury because "compensation for mental and emotion distress is not available under a right of publicity claim" and "mental and emotional distress is also not relevant to the four elements of Plaintiffs' remaining right of publicity claim"

Case 2:04-cv-00299-DGC

Document 531

Filed 11/21/2006

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However, Defendants are too narrow in their thinking that the only way evidence can be relevant in this action is if it is related to damages or one of the four elements of a right of publicity claim. Instead, Defendants fail to see that such evidence of how Plaintiffs' felt, i.e., the anger and distress felt by Plaintiffs when they found out about the apparel being produced under the HGI/FUBU licensing deal, is directly relevant to Defendants affirmative defenses. First, Defendants assert the affirmative defenses of laches and waiver. Defendants will attempt to convince the jury during trial that they have been `using Plaintiffs names and likenesses for decades' and Plaintiffs have never before complained. As a result of Defendants attempt to assert these affirmative defenses, Plaintiffs' reaction to their discovery of the HGI/FUBU apparel and Defendants use of their publicity rights is HIGHLY relevant. Evidence regarding Plaintiffs' reaction to the discovery of the HGI/FUBU apparel is relevant to this litigation because it tends to make a fact of consequence (i.e., that Defendants have not been using and licensing Plaintiffs' names and likenesses for decades) more probable. Fed.R.Evid. 401. Second, Plaintiffs will rebut Defendants' affirmatives defense by showing that due to their emotional reactions to the discovery of the HGI/FUBU apparel, Plaintiffs contacted their lawyers. Basically, Plaintiffs will testify regarding the facts and events surrounding their

discovery of the HGI/FUBU apparel and their reaction thereto which led to the initiation of this lawsuit. Because such evidence is relevant to Defendants affirmative defenses, Plaintiffs have a right to testify to such at trial.

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Third, Defendants have failed to meet the evidentiary standard set forth by Fed.R.Evid. 403. Rule 403 states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice..." It is clear that evidence regarding Plaintiffs' emotional reactions to the discovery of the HGI/FUBU apparel is highly relevant to rebutting Defendants' affirmative defenses. However, Defendants fail to show how this

probative value is "substantially outweighed" by unfair prejudice. Furthermore, the Restatement (Third) of Unfair Competition §49 specifically states, "the appropriation of another's identity may also cause emotional or reputational injuries" and "Celebrities, although often primarily concerned with protecting the commercial value of their identities, may also suffer emotional distress or humiliation from an unauthorized exploitation of their name or likeness." Thus, information regarding Plaintiffs' emotional distress is clearly relevant. Based upon the forgoing, Plaintiffs' have a right to present evidence regarding the mental and emotional distress experienced by them (i.e., how they felt when they found out about the HGI/FUBU apparel and licensing deal), which caused them to file this lawsuit.

RESPECTFULLY SUBMITTED this 21st By:

day of November 2006.

/s/ Clay M. Townsend CLAY M. TOWNSEND, ESQUIRE KEITH MITNIK, ESQUIRE Morgan & Morgan, PA Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

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By:

/s/ Anders Rosenquist Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES 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 21st , 2006, a true and correct copy of the foregoing PLAINTIFFS' RESPONSE TO DEFENDANTS IN LIMINE MOTION TO EXCLUDE EVIDENCE RELATING TO PLAINTIFFS' MENTAL AND EMOTIONAL DISTRESS was sent by postage-prepaid 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
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Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers, 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 21st day of November 2006, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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