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. Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon, through their respective undersigned counsel, hereby submit their joint Response to Defendant GTFM, LLC's In Limine Motion to Exclude Punitive Damages Claims. Defendants GTFM's argument for the exclusion of evidence regarding punitive damages is circular and as a result, totally illogical: Defendant GTFM argues 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 Defendant GTFM argues, then why is GTFM wasting their time submitting a Motion in Limine to exclude evidence that Plaintiffs' don't even have? The fact of the matter is that Plaintiffs' do have evidence regarding the actions of GTFM to support a request for punitive damages, and Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC PLAINTIFFS' RESPONSE TO DEFENDANT GTFM, LLC'S IN LIMINE MOTION TO EXCLUDE PUNITIVE DAMAGES CLAIMS

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Defendant GTFM is now improperly seeking to keep Plaintiffs from presenting that evidence to the jury. Defendant GTFM has 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 Defendant GTFM 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. Defendant GTFM is 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 wrondoing. Asphalt Eng'rs v. Galusha, 160 Ariz. 134, 135 (Ariz. Ct. App. 1989). There are numerous instances Plaintiffs' have uncovered during the course of this litigation (which are too lengthy to list in this Response, but a few examples are summarized), which collectively show the requisite evil mind required for an award of punitive damages: 1. GTFM lied about the number of styles of clothing that were being sold. GTFM & HGI withheld discovery to create a situation where Plaintiffs could not accurately determine the sales related to infringing garments.

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2. GTFM initially lied, stating, "there were no overseas sale." When they were confronted with purchases made overseas, they partially admitted some overseas sales. 3. GTFM completely failed to perform their duty of due diligence when entering into the licensing agreement with HGI, opting instead to completely rely on their indemnification agreement in order to trample on Plaintiffs' rights without even attempting to look at one of Plaintiffs' old player contracts. 4. In open court, GTFM counsel Sacks made several assertions at the summary judgment hearing that are simply contradicted by the facts: a. "There's no evidence that the hang tags were used on any particular garments," (Pg. 42). The truth is that GTFM's CADs show hang tags on garments (Bates # 1242 & 1244). b. "That evidence (i.e. hang tag evidence) resides with a manufacturer, presumably in Cambodia or Thailand. Which manufacturer was never sought any discovery from," (Pg. 42). How can Plaintiffs get discovery from a foreign factory that GTFM refuses to disclose? In December of 2004, Plaintiffs' asked for hang tag information and factory information in their First Request for Production. Defendants responded with nothing. GTFM's Blenden testified that he couldn't name one single factory. Worse, Sacks, when pressured by

Plaintiffs for manufacturing specifications, purchase orders, and hang tag information in specification packages (even though "three feet thick"), on August 12, 2005, refused to turn over the factory information that he clearly possessed and stated the "deal" was for samples from four (4) factories POs and LDP," (Sacks email of 8/12/05). The requested information was in the custody and control of GTFM, and they concealed it. Based upon the forgoing, Plaintiffs' have a right to present evidence regarding the actions of Defendant GTFM which would support Plaintiffs' claims for punitive damages.

Furthermore, punitive damages can be awarded even if compensatory damages are not, all that is required is an actual injury or an award

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RESPECTFULLY SUBMITTED this By:

21st

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

of nominal damages. Crevier v. Sullinger, 57 Fed. Appx. 319 (9th Cir. 2003)(unpublished).

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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 DEFENDANT GTFM, LLC'S IN LIMINE MOTION TO EXCLUDE PUNITIVE DAMAGES CLAIMS 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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