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 THE PURCHASE OR OWNERSHIP OF HGI BY SHAMROCK HOLDINGS, INC. AND THE OWNERSHIP OF SHAMROCK HOLDINGS

Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon, through their undersigned counsel, hereby submit their joint Response to Defendants' In Limine Motion to Exclude Evidence Relating to the purchase or Ownership of HGI by Shamrock Holding, Inc. and the Ownership of Shamrock Holdings. Defendants' sole argument that Plaintiffs should be precluded from introducing such evidence is because it is irrelevant and prejudicial. However, such evidence regarding the purchase and ownership of HGI is relevant as it goes to proving the very elements of a claim of right of publicity. To prevail on a cause of action for invasion of right of publicity, Plaintiffs must prove: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to the defendant's advantage, commercially or otherwise; (3) lack of consent; and

Case 2:04-cv-00299-DGC

Document 526

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(4) resulting injury. Pooley v. National Hole-In-One Ass'n, 89 F. Supp. 2d 1108, 1111 (D. Ariz. 2000). Therefore, any evidence tending to show that the appropriation of Plaintiffs' names and likeness benefited Defendants, is appropriate for presentation at trial. Defendants wish to assert the absurd position that it is a mere coincidence that Mannie Jackson was able to purchase the Harlem Globetrotters out of bankruptcy for a substantially low amount in 1993, and then, almost immediately after the end of the licensing deal between HGI and GTFM, LLC, was able to turn around and sell eighty percent (80%) of HGI's stock to Shamrock Holdings in September of 2005 for approximately $70 million. It is that transaction (the sale of HGI to Shamrock Holdings), along with any actual profits received by HGI from the sale of the HGI/FUBU apparel, which goes directly to the heart of proving the element that HGI benefited from the use of Plaintiffs' names and likenesses, commercially or otherwise. The fact of the matter is that HGI's use of Plaintiffs' names and likenesses increased the value of HGI. Furthermore, Defendants challenged Plaintiffs' listing of Shamrock representatives. However, Plaintiffs listed such witnesses because they may be able to testify regarding the lucrativeness and appeal of the ability to use Plaintiffs' celebrity status in future licensing deals, and the effect that had in raising the value of HGI. It is Plaintiffs' theory that Defendants' perception of their ability to use Plaintiffs' names, likenesses, and celebrity status in future licensing deals certainly did not hurt the sale of HGI to Shamrock Holdings, but instead likely drove up the price and sealed the deal. Evidence regarding Shamrock's purchase of HGI is relevant to this litigation because it tends to make a fact of consequence (i.e., that Defendants' gained an advantage from the appropriation of Plaintiffs' names and likenesses) more probable. Fed.R.Evid. 401. Therefore, any evidence that HGI benefited from the use of Plaintiffs' names and likenesses, including

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evidence that the use of Plaintiffs' names and likenesses substantially increased the value of HGI as a company, is admissible at trial. Although Defendants' also argue that presentation of this information at trial would be "highly prejudicial" because it would signal to the jury that "deep pockets" are behind HGI and the license agreement, Defendants fail to meet the evidentiary standard set forth by Fed.R.Evid. 403. It is clear that evidence regarding the sale of HGI to Shamrock and Shamrock's current status as a shareholder is highly relevant to this litigation as it goes to the heart of Plaintiffs' burden of proving the elements of a claim of right of publicity. However, Defendants fail to show how this probative value is "substantially outweighed" by unfair prejudice. The only possible prejudice that Defendants were able to glean is that the jury may perceive that Defendants have "deep pockets." However, Defendants' fear is baseless as this would have NO bearing on the jury's determination of liability, and any monetary verdict would have to be reasonably related to the evidence of damages presented during trial. Furthermore, the HGI/Shamrock documents contain references to Plaintiffs' claims as well as contain an inventory of intellectual property much like that of the 1993 purchase of the Globetrotters by Mannie Jackson that fails to list the player contracts. It is highly relevant to

know if Mannie Jackson or Ed Garvey made representations to the new owners about the nature of Plaintiffs so called `perpetual publicity rights.' It is also highly relevant what Shamrock (i.e., the new owners) believes its assets to include, and whether they believe those assets include Plaintiffs' publicity rights.1 Perhaps most importantly, the Shamrock transaction was disclosed only after Plaintiffs learned of it in the press despite Defendants disclosure requirements.2

1

Especially given that it is arguable that Plaintiffs' publicity rights may survive their death under Sinkler v. Goldsmith, 623 F.Supp. 727 (D.Ariz. 1985), Shamrock could exploit Plaintiffs' publicity rights for years after their death, instead of Plaintiffs' heirs. 2 On a side note, Defendants have called Plaintiff's listing of Ed Garvey outrageous, but it is Garvey that failed to disclose the sales transaction and change in ownership of HGI (including the merger into a Nevada corporation with no notice), which is why Plaintiffs

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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

naming of Garvey as a witness is necessary and should not be sanctioned. Also, the Court, after a telephonic hearing, extended the 9/30/2005 discovery deadline to make Garvey disclose the HGI sale ­ a request by Plaintiffs that Garvey vehemently opposed.

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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 EXLUDE EVIDENCE RELATING TO THE PURCHASE OR OWNERSHIP OF HGI BY SHAMROCK HOLDINGS, INC. AND THE OWNERSHIP OF SHAMROCK HOLDINGS 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.
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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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