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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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 THE HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC.'S CORPORATE OR FINANCIAL AFFAIRS

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 the Harlem Globetrotters International Foundation, Inc.'s Corporate or Financial Affairs. Defendants only argument for the exclusion of such evidence, specifically Plaintiffs' Exhibits 65 and 67, is the statement that "detailed corporate and financial information is clearly irrelevant since the Foundation is no longer a party for liability, damages, or any other purpose." However, Defendants do agree that some evidence regarding the Foundation and its financial affairs is relevant, such as evidence showing that the Globetrotters donated 8% of its

Case 2:04-cv-00299-DGC

Document 527

Filed 11/21/2006

Page 1 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

FUBU royalty to the Foundation. Defendants only seek to exclude Plaintiffs' Exhibits 65 (HGI Foundation Receipt Report August 2000-July 2003) and 67 (HGI Foundation Cash Journals August 2002-September 2004). The problem is that at trial, through the evidence and testimony that HGI donated 8% of its FUBU royalty to the Foundation, HGI and specifically Mannie Jackson will attempt to show that they were being generous with the profits from the licensing deal, and through the Foundation gave money back to former Globetrotter players who were in need. This will be an attempt from the HGI Defendants to assist them in disproving that they had the requisite "evil mind" needed for an award of punitive damages, and draw jury sympathy. However, the reason that Plaintiffs' have included Exhibits 65 and 67: impeachment of Mannie Jackson's testimony regarding the charitable purpose of the Foundation. Several letters written to Plaintiffs by Mr. Syracuse stated that the purpose of the HGI/FUBU licensing deal was to make money for the Foundation, yet Exhibits 65 and 67 show that the Foundation has helped no former players. Through those letters to Plaintiffs, Mr. Jackson attempted to trick the Plaintiffs as to the purpose of the HGI/FUBU licensing deal at the outset of this litigation. Furthermore, at his deposition, Mr. Jackson could not name a single former Globetrotter player who was a beneficiary of the funds received by the Foundation. Mr. Jackson further stated in his deposition that "the plan there was to bring funds into the foundation" to help former Globetrotter players. The corporate and financial records of the Foundation are relevant to Mannie Jackson's credibility. Specifically, Exhibits 65 and 67 show that no proceeds of the Foundation benefited former Globetrotter players at all. Instead, they show the personal advantage that the

Case 2:04-cv-00299-DGC

-2Document 527

Filed 11/21/2006

Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Foundation funds gave to Mannie and Catherine Jackson: the Foundation gave money to charities that gave Mannie Jackson big awards, and also benefited Catherine Jackson's pet charities such as the Women's League of Arizona. Therefore, Exhbits 65 and 67 actually show that HGI exploited Plaintiffs' names and likenesses to give further personal benefit to Mannie and Catherine Jackson through the Foundation. Through their Motion in Limine, the HGI Defendants are attempting to keep in the facts that help them (8% of the royalties from the HGI/FUBU licensing deal went to Foundation for charitable purposes), yet keep out the evidence that hurts their case (Exhbits 65 and 67 instead show that the Foundation did not help any former Globetrotter players, instead the Jackson's used the Foundation money to further personally benefit themselves). Furthermore, the

Jackson's are also named as personal defendants in this case and they both received a benefit from that funds that went into the Foundation. This goes directly to the elements for a right of publicity claim, specifically: the defendant's use of the plaintiff's identity; and the appropriation of plaintiff's name or likeness to the defendant's advantage. Pooley, 89 F. Supp. 2d at 1111. Therefore, all of the Foundation records are relevant to the elements of use of Plaintiffs' identity, and that use was to Defendants' (HGI and the Jackson's) advantage. The fact of the matter is that the Foundation records, and specifically Exhibits 65 and 67 are highly relevant to this litigation. Specifically, to the impeachment of Mannie Jackson at trial as to the charitable purposes of the Foundation and the fact that it has not benefited even one former Globetrotter player. Based upon the forgoing, Plaintiffs' have a right to present evidence regarding the corporate or financial affairs of the Harlem Globetrotters International Foundation, Inc., and specifically Plaintiffs' Exhbits 65 and 67.

Case 2:04-cv-00299-DGC

-3Document 527

Filed 11/21/2006

Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

RESPECTFULLY SUBMITTED this 21st

day of November 2006.

By:

/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

Case 2:04-cv-00299-DGC

-4Document 527

Filed 11/21/2006

Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC

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 THE HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC.'S CORPORATE OR FINANCIAL AFFAIRS 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.
-5Document 527 Filed 11/21/2006 Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC

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

-6Document 527

Filed 11/21/2006

Page 6 of 6