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

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Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Neal Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al. Plaintiffs, vs. PLAINTIFFS' JOINT RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO EXCLUDE ANY EVIDENCE OF SALES ALLEGEDLY VIOLATING PLAINTIFFS' RIGHTS OTHER THAN EXPRESSLY SET OUT IN THE JUNE 27, 2006 ORDER Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 14 15 16 17 18 19 20 21 Defendants.

Plaintiffs, Fred "Curly" Neal, Larry "Gator" Rivers, Dallas "Big D" Thornton, Robert "Showboat" Hall, Marques Haynes, James "Twiggy" Sanders, and "Meadowlark" Lemon (collectively referred to as "Plaintiffs"), hereby file this their Response to Defendants' Motion In Limine to Exclude Any Evidence of Sales Allegedly Violating Plaintiffs' Rights Other Than Expressly Set out in the June 27, 2006 Order, and state as follows: 1. Defendants' Motion is duplicative of Defendants' Motion In Limine to Exclude Plaintiffs'

Sales Charts to the extent it seeks to prevent Plaintiffs from presenting admissible, relevant evidence of 22 sales to the jury, and the Motion should be denied. 23 24 25 26 2. Defendants' Motion seeks an interpretation this Court's summary judgment Order to

exclude relevant, admissible evidence of FUBU sales, even evidence produced by Defendants, and all record evidence, including FUBU business records produced throughout the course of discovery. Apparently, Defendants' Motion seeks to exclude even testimony from Plaintiffs and Defendants

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themselves. But the 15 paragraph summation of the Order does not even remotely state what Defendants suggest (Order, ¶¶1-15, pages 30-32). 3. Such a result would be inequitable and would violate the presumption of liberal admissibility.

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

6 relevant within the terms of F.R.E. 401. Pierce Packing Co. v. John Morrell & Co., 633 F.2d 1362 (9th 7 8 9 10 11 b. 12 13 14 15 16 f. 17 18 19 20 21 22 23 24 25 26 27 28
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Cir.1980). Plaintiffs submit the Motion is contrary to the letter and spirit of this Court's Order for several reasons: a. As far as Plaintiffs' limited evidence of individual damages for summary judgment (i.e. the HGI Letter and Sales Chart), this Court noted that Defendants did "not explicitly seek summary judgment on the issue until its reply brief" (Order, page 21, lines 23-24). This Court's Order stated that Plaintiffs "may use the letter and Sales Chart", not that the charts have the only evidence Plaintiff could introduce. (Order, page 23, lines 11-13). This Court's Order does NOT limit Plaintiffs ability to present F.R.E. 1006 exhibits that summarize any and all other relevant evidence. This Court's Order does NOT preclude the parties (i.e. FUBU corporate executives) from testifying themselves as to relevant evidence of sales using their own business records. This Court's Order does NOT exclude other relevant evidence of sales from trial. There is admissible evidence of sales independent of Plaintiffs' so-called "Sales Charts", which was produced by the very Defendants' counsel filing the motion in limine. This Court specifically stated: "The Restatement makes clear that `the plaintiff may recover the proportion of the defendant's net profits that is attributable to the unauthorized use.' Id. Once the plaintiffs establishes the defendants' sales, `the defendant has the burden of establishing any portion of the sales that is attributable to factors other than the appropriation of the plaintiff's identity and any expenses properly deducted in determining net profits'...this law clearly makes disgorgement of profits an available remedy in this case." (Order, page 17, lines 16-22). 4. FUBU Sales Records have been delivered to your Honor as Exhibit A to Plaintiffs' Motion

c. d. e.

for Preadmission of Summary (Doc #474) pursuant to F.R.E. 1006 and are comprised of thirteen (13) different FUBU productions. This type of evidence simply should not be excluded on the grounds submitted by Defendants ­ that the Order should be read to exclude ALL evidence other than the "HGI Letter" and "Sales Chart". 5. The language in the Order, which denied Defendants' motion for summary judgment as to

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Sales Charts as sufficient evidence of individual damages "in ruling on GTFM's Motion for Summary Judgment" (Order, page 22, lines 1-3). Again, the Court states Plaintiffs "may use" the information (Order, page 23, lines 11-13). 6. Defendants' efforts should be in attacking all Plaintiffs' sales data at trial using their own

evidence of related expenses. There is no surprise or prejudice to Defendants by Plaintiffs using ALL 6 relevant evidence.1 In addition to other sales evidence, Plaintiffs' Summary, compiled pursuant to F.R.E. 7 8 9 10 11 12 13 14 15 16 ­ anything that is relevant and admissible. 17 8. 18 19 20 21 22 23 24
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1006, compiles FUBU sales data. It totals the gross revenues as detailed in Defendants' FUBU Sales Reports using the method described by Defense counsel Sacks in FUBU briefs and in open court. (Plaintiffs' Motion for Pre-Admission, page 6, Doc#474). 7. This Court's Order stated that "the Restatement recognizes a disgorgement measure of

damages that requires Plaintiffs to prove the amount of Defendants' sales. Restatement §49 cmt.d." (Order, page 22, lines 9-10). Thus, "to prove the amount," Plaintiffs are only limited by the rules of evidence as to what they may present at trial to prove these sales ­ including evidence above and beyond that considered by this Court for purposes of summary judgment: testimony, FUBU business records, etc.

The fact that the Court did not base its summary judgment ruling on all the other record

evidence does not exclude it from use at trial.2 9. Defendants' Motion should be denied, and Plaintiffs permitted to use their proposed F.R.E.

1006 charts and all other relevant admissible evidence. DATED this 21st day of November, 2006.

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Defendants have already filed their own cost summaries that appear to provide expenses associated with all the sales, not just the "HGI Letter" and "Sales Chart", including a 13 page "Inventory: Cost Sheet" (Defendants' Proposed Exhibits 1044, 1094-1096. Defendants are still revising their "Net Profit Analyses By Player" (Exhibit 1095) as late as November 17, 2006. See attached Exhibit A. 2 Plaintiffs could not provide an initial FRCP Rule 26(a)(1)(C) computation of sales when the lawsuit began because there was no discovery provided by Defendants. As FUBU's 13 different productions of business records trickled in, Plaintiffs provided charts to Defendants as early as February 18, 2005. Indeed, FUBU produced sales data on the last day of discovery cutoff on September 30, 2005. (See Exhibit A to Plaintiffs' Motion for Preadmission, Bates #1689, Doc#474).

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MORGAN & MORGAN, P.A. By: ____/S/ Clay M. Townsend______________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders ROSENQUIST & ASSOCIATES ____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon

PLEASE TAKE FURTHER NOTICE that copies of the above-referenced document 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. -4Document 523

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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 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: 1. I hereby certify that on November 21st, 2006, a true and correct copy of Plaintiffs' Response to Defendants' Motion in Limine to Exclude any Evidence of Sales Allegedly Violating Plaintiffs' Rights Other than Expressly Set Out in the June 27, 2006 Order 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]

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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.
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3. I hereby certify that on November 21st, 2006, a true and correct copy of Plaintiffs' Response to Defendants' Motion in Limine to Exclude any Evidence of Sales Allegedly Violating Plaintiffs' Rights Other than Expressly Set Out in the June 27, 2006 Order 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 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.

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

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