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., vs. Plaintiff, Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC PLAINTIFFS' JOINT RESPONSE TO DEFENDANT GTFM, LLC'S MOTION IN LIMINE TO EXCLUDE ANY ALLEGATIONS OF DISCOVERY ABUSES BY GTFM, LLC

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 Any Allegations of Discovery Abuses by GTFM, LLC. Plaintiffs assert that Defendants' discovery behavior is relevant to issues for determination at trial. Evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" is relevant within the terms of F.R.E. 401. Pierce Packing Co. v. John Morrell & Co., 633 F.2d 1362 (9th Cir.1980). Such evidence is relevant to the underlying issues of reasonable certainty claims as well as to the issue of punitive damages. "Punitive damages are ordinarily available to successful plaintiffs in right of publicity actions under the general rules applicable to the award of punitive damages in tort actions." Restatement (Third) of Unfair Competition § 49. To succeed on a punitive damages claim in Arizona, a

26 plaintiff must prove by clear and convincing evidence that the defendant acted with the requisite "evil mind." Rodriguez v. American Cyanamid Co., 1997 U.S. App. LEXIS 13228 (9th Cir. 1997).
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Factors

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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. Asphalt Eng'rs v. Galusha, 160 Ariz. 134, 135 (Ariz. Ct. App. 1989). This includes pretrial conduct of the defendant during the discovery phase attempting to conceal documents evidencing the wrongdoing. Id. Plaintiffs assert the

following facts will be established in this case at trial to satisfy the clear and convincing requirement, and show the "evil mind" required for a verdict of punitive damages:

9 1. FUBU and HGI withheld discovery creating a situation where Plaintiffs could not accurately 10 determine the styles, sales or hang tag data related to infringing garments. Plaintiffs have briefed this 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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situation extensively (i.e. see Ex. A, excerpts from Plaintiffs' brief, Doc. #220). 2. In open court, FUBU counsel Sacks made several troubling assertions concerning discovery behavior at the summary judgment hearing of June 2, 2006 that are simply contradicted by the facts: a. "There's no evidence that the hang tags were used on any particular garments," (Ex. B, Pg. 42, lines 1617). The truth is that FUBU CAD's show hang tags on garments (Ex. C, Bates # 1242 & 1244).1 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," (Ex. B, Pg. 42, lines 17-19). How can Plaintiffs get discovery from a foreign factory that FUBU refuses to even disclose? Plaintiffs' repeatedly asked for hang tag information, purchase order and factory information, including in their Third Request for Production (Ex. D, Plaintiffs' Third Request for Production ¶¶9, 10, 11, 12). Defendants responded with nothing. FUBU'S Blenden testified that he couldn't name one single factory. (Ex. E, Blenden Deposition Excerpt, page 154 lines 13-15). Worse, Sacks, when pressured by Plaintiffs for manufacturing specifications, purchase orders, and hang tag information refused to turn over the factory information that FUBU clearly possessed and stated the "deal" was for samples from four (4) factories POs and LDP," (Ex. F, Sacks email of 8/12/05). The requested information was in the custody and control of FUBU, and they withheld it.

Sacks now states in his Motion to Strike Plaintiffs' Disclosures that they `would have done a survey regarding the marketing impact of hang tags (which it did not do)' (page 4-5, Memo, Doc#469), a statement at odds with Sacks earlier statement that "I don't think hang tag data exists." (Doc#220, page 8).

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c. "They just never asked for most of this stuff," and "they never made a motion to compel" (Ex. B, Pg. 44, lines 9-10, line 12). "They knew about Jordache. They could have asked for sales reports from Jordache, they could have served a subpoena. They did none of that. In my view, Your Honor, they should have," (Ex. B, Pg. 46, lines 19-22), and "All they had to do is serve a subpoena on Jordache. They would have gotten details and could have broken down each of these styles, each of the women's styles by Plaintiff as well," (Id. at 47, lines 1-4). These statements contradict earlier FUBU counsel representations. In their April 8, 2005 letter to Plaintiffs: "no sales detail reports (by style) exist for the women's line" (Ex. G, ¶11), and "no summary of styles and sales organized by Players' names exist" (Ex. G, ¶8). 3. FUBU also has stated it had no obligation to provide Samsung documents or to disclose

known shareholders of GTFM, LLC. FUBU stated in Sacks' Declaration of 12/8/05 (Doc. # 305, ¶¶ 1510 11 12 13 14 15 16 17 18 4. 19 7.11, which requires supplementation when "new information is obtained," but on numerous occasions 20 21 22 23 24 25 26
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17): "Plaintiffs never sought specific corporate records regarding membership in GTFM, LLC, or served interrogatories seeking such information"; "The identity of shareholders of GTFM, LLC is immaterial to this motion and this litigation. Indeed, Plaintiffs did not take any discovery of Samsung--a 20% member of GTFM, LLC--despite the fact that Samsung was in charge of all manufacturing and shipping of Globetrotter apparel"; and "Smith had nothing to do with the Globetrotters Apparel, which is why he was not disclosed in Rule 26 disclosures." FUBU forgets that it had an ongoing obligation under Rule 26 to supplement discovery without Plaintiffs having to file a motion to compel. FUBU had an obligation to disclose the true ownership of FUBU under Arizona local rule

refused, under oath, to disclose L.L. Cool J.2 5. Based upon the forgoing, Plaintiffs' have a right to present evidence, or at least ask questions

of the witnesses, regarding discovery abuses of GTFM, LLC and its officers because it is relevant to the issue of the reasonable certainty of damages and punitive damages.

Sacks' Declaration disingenuously states that "In their deposition testimony, Messrs. Aurum, Blenden, Weisfeld FORGOT to mention rapper LL Cool J (James Todd Smith, herein "Smith") as a minor non-voting member of GTFM, LLC. (Emphasis added. Sacks' Reply Declaration Doc#313 at ¶37).

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RESPECTFULLY SUBMITTED this 21st day of November 2006.

By:

____/S/ Clay M. Townsend_________ CLAY M. TOWNSEND Florida Bar No.: 363375 KEITH MITNIK Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA Attorneys for Plaintiffs Neal, Rivers, Hall, Thornton, Haynes and Sanders ____/S/Anders Rosenquist__________ ANDERS ROSENQUIST, JR. FLORENCE M. BRUEMMER Rosenquist & Associates Attorneys for Plaintiff Meadowlark Lemon

By:

PLEASE TAKE FURTHER NOTICE that copies of the above-referenced documents have been served via first class mail on the following attorneys: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Ira S. Sacks, Esq. Safia A. Anand, Esq. DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. and Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson
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Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Certificate of Service Vanessa Braeley, declares as follows:

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. I hereby certify that on November 21st, 2006, a true and correct copy of Plaintiffs' Response to Defendant GTFM, LLC's in limine Motion to Exclude Any Allegations of Discovery Abuses by GTFM, LLC was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Edward R. Garvey ­ [email protected] Robert Williams Goldwater, III ­ [email protected] Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected] Anders V. Rosenquist, Jr. - [email protected] Ira S. Sacks ­ [email protected] 2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on November 21st, 2006, a true and correct copy of Plaintiffs' Response to Defendant GTFM, LLC's in limine Motion to Exclude Any Allegations of Discovery Abuses by GTFM, LLC was sent by postage-prepaid first-class U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center -5Document 524 Filed 11/21/2006

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3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Ira S. Sacks, Esq. Safia Anand, Esq. DREIER LLP 499 Park Ave. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: November 21st, 2006. Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801

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Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

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