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 HARLEM GLOBETROTTERS INTERNATIONAL, INC., MANNIE JACKSON, and CATHERINE JACKSON'S IN LIMINE MOTION TO EXCLUDE PUNITIVE DAMAGES CLAIMS

Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon, through their respective undersigned counsel, hereby submit their joint Response to Defendants Harlem Globetrotters International, Inc., Mannie Jackson, and Catherine Jackson's (hereinafter collectively as "Defendants") In Limine Motion to Exclude Punitive Damages Claims. Defendants' argument for the exclusion of evidence regarding punitive damages is circular and as a result, totally illogical: Defendants argue that "because there is no evidence" to support punitive damages, Plaintiffs should be precluded from offering "any evidence relating to punitive damages." If Plaintiffs' in fact have no evidence to support a claim of punitive

damages, as Defendants argue, then why are Defendants wasting their time submitting a Motion in Limine to exclude evidence that Plaintiffs' don't even have? The fact of the matter is that

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Plaintiffs' do have evidence regarding the actions of Defendants to support a request for punitive damages, and Defendants are now improperly seeking to keep Plaintiffs from presenting that evidence to the jury. Defendants have never submitted a dispositive motion regarding punitive damages, and in fact that was the only claim that Defendants chose not to request summary judgment on. If in fact Defendants believed Plaintiffs had no evidence regarding punitive damages, the proper motion was a request for summary judgment. The time for summary judgment requests is now over, and as a result this Court has never ruled that Plaintiffs' are precluded from presenting punitive damages evidence at trial. Now, the correct procedure is for Plaintiffs to submit their evidence during trial and for the Court to rule at the close of trial whether a punitive damages instruction is proper, given all of the evidence presented at trial. Defendants are correct in stating that punitive damages are available in a right of publicity action.1 Restatement (Third) of Unfair Competition § 49. Factors considered when deciding whether a defendant acted with an evil mind include the duration of the misconduct, the defendant's awareness of the harm or the risk of harm, and any concealment of the wrongful conduct. Schmitz v. Aston, 197 Ariz. 264, 269 (Ariz.Ct.App. 2000). An award of punitive damages can be supported by a defendant's attempt to cover-up his misconduct, which can include pretrial conduct during the discovery phase attempting to conceal documents evidencing the wrongdoing. Asphalt Eng'rs v. Galusha, 160 Ariz. 134, 135 (Ariz. Ct. App. 1989). There are numerous instances Plaintiffs' have uncovered during this litigation (which are too lengthy to list in this Response, but a few examples have been summarized), which collectively show the requisite evil mind required for an award of punitive damages: 1. After litigation commenced, Defendant Mannie Jackson made HGI insolvent by

pledging all the Intellectual Property Assets of HGI for a Nine Million Dollar loan.

Furthermore, punitive damages can be awarded even if compensatory damages are not, all that is required is an actual injury or an award of nominal damages. Crevier v. Sullinger, 57 Fed. Appx. 319 (9th Cir. 2003)(unpublished).

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2. FUBU & HGI withheld discovery, and manipulated the timing of providing discovery, that related to the number and styles of the infringed clothing that was produced and sold. 3. When Meadowlark Lemon was inducted into the Basketball Hall of Fame, Mannie Jackson, purporting to be Meadowlark's best friend, introduced him when he received his ring. In Jackson's introduction, he had many wonderful things to say about Meadowlark. All the while knowing that Meadowlark did not know he was using his name to make millions. To add insult to injury, after the induction ceremony, at the reception, Meadowlark was shocked to see, for the first time, fans wearing the Harlem Globetrotter clothing bearing his name and number. 4. Mr. Jackson based his opinion that he owned Plaintiffs' publicity rights in perpetuity upon "standard" player contracts (Jackson Deposition Tr. pg. 231, 229, 230,). But, Jackson admits he never saw the individual player contracts of Plaintiffs (Id. pg. 184) when shown exhibits that evidence that contracts were "substantially different from the standard form agreement used by HGI" ­ a quote from former HGI president, Arthur Harvey (Id. pg. 179, 180182). Jackson admits he had never seen Curly Neal's employment contract before Jackson's deposition. "I have not seen it before." (Id. pg. 102). 5. Jackson testified he never saw a union agreement prior to his deposition (Jackson Depo. Tr. pg. 176), yet just came up with a 25% royalty rate for players on HG merchandise. His ignorance of union negotiated CBA rules is not credible given his claim of doing due diligence when he purchased the team in 1993 as he admits that he "was aware of an agreement between the Globetrotters and a player union" (Id. pg. 108), but didn't bother to look at it before manufacturing millions of dollars in clothing bearing Plaintiffs' names. Jackson says his only knowledge of the terms of the union agreement was from the media "in the `70's" (Id. pg. 108). 6. When asked by GTFM to see copies of Plaintiffs' old player contracts, HGI failed to produce them. Based upon the forgoing, Plaintiffs' have a right to present evidence regarding the actions of Defendants which would support Plaintiffs' claims for punitive damages.
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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

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 HARLEM GLOBETROTTERS INTERNATIONAL, INC., MANNIE JACKSON, and CATHERINE JACKSON'S IN LIMINE MOTION TO EXCLUDE PUNITIVE DAMAGES CLAIMS was sent by postageprepaid 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.
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15333 North Pima Road, #225 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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