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 EVIDENCE RELATING TO WHETHER PLAINTIFFS' PLAYER CONTRACTS ARE ASSETS OF HGI Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 14 15 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 Evidence Relating

16 to Whether Plaintiffs' Player Contracts are Assets of HGI, and state as follows: 17 18 19 20 21 22 23 24 25 26
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1. This Court has ruled (as Defendants note in their Motion) that the 1993 HGI purchase contract is "ambiguous and the intent of the parties depends on the credibility of or inferences to be drawn from extrinsic evidence."1 Defendants' nonsensical Motion, which ignores this Court's Order, is frivolous as Plaintiffs' evidence on this issue is highly relevant (i.e. if HGI and Mannie Jackson DID NOT purchase Plaintiffs' contracts, there can absolutely be no consent for HGI to have exploited Plaintiffs' publicity rights which is determinative of the element of consent).

Plaintiffs have briefed the issue of HGI's lack of authority given evidence they did not acquire Plaintiffs' numerous old contracts with HGI predecessors (Plaintiffs' Response to HGI's Motion for Summary Judgment VI(a), page 7, Doc.#319)

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2. Even if Defendants are correct that the parties involved in the transaction intended to transfer all of the Harlem Globetrotter assets, and that Mannie Jackson intended to buy all of the assets, the question remains what exactly WERE all of the assets? The Court's ruling leaves this issue for the jury. 3. Plaintiffs have extensively briefed the fact that, notwithstanding a bevy of attorneys involved in the purchase transaction, and a detailed listing of all physical inventory and intellectual property (including a

6 detailed multi-paged schedule of trademarks registered all over the world), not one of Plaintiffs' contracts 7 8 9 10 11 12 13 14 15 16 contracts was never once even brought up during the negotiations or execution of the HGI purchase. (¶21, 17 Doc#311). 18 19 20 21 22 23 24 25 26 27 28
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was identified. (PSOF¶3-5, Doc#314; ¶16, 21-25, Doc#311). More specifically, there is a schedule entitled "Player Contracts", which in fact lists Harlem Globetrotter players, but conspicuously absent from the list are the names of Plaintiffs. (See Exhibit 5(a) page 1308; Exhibit 5(b) page 1290, Exhibit 5(c) page 1233, 1196,, Exhibit 5(d) page 1385, 1386 to Plaintiffs' Reply to HGI's Response, Doc.#319). 4. Additionally, Plaintiffs have briefed the fact that none of the Plaintiffs were informed of the purported purchase of their contracts, (¶6, Doc#314). Mannie Jackson also has stated that he originally had no intention of using individual players or a star system that intended to exploit the entire Harlem Globetrotter brand and witnesses Horton and Nikolis confirmed that the issue of these individual player

5. In addition to the issue of what these witnesses believe the parties intended, is the issue of whether they accomplished what they intended. For example, another important area of evidence which Defendants seek to exclude is the effect of the bankruptcy that occurred prior to HGI's purchase (Defendants' Motion In Limine, Doc# 497). Plaintiffs assert that whether or not the parties intended to sell the player contracts, or whether or not Jackson intended to purchase them, they could not have accomplished their intent due to all old contracts either being terminated, fully performed, or being executory and extinguished by the bankruptcy as they were not specifically identified on a schedule of assets intended to survive the

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bankruptcy.2 HGI's assertion that Plaintiffs have no evidence that HGI did not acquire the contracts is false. Plaintiffs briefed this very issue in their Reply to HGI's SOF ¶11, 13, 17, 21-22 (Doc.#267). Plaintiffs' specific responses are located at ¶¶14, 16, 21-26 (Doc#311). 6. As to Defendants' second point, it is telling that Defendants concede that HGI did NOT purchase the Plaintiffs' contracts from bankruptcy, HGI's predecessor did. Defendants' citation to cases involving

6 res judicata and finality of the bankruptcy proceedings are inapposite. Plaintiffs do not challenge the 7 8 9 10 11 12 13 14 15 16 agreement, copies of all player contracts could not even be located, (despite their desire to analyze them 17 prior to entering the licensing agreement), "due to the bankruptcy." Thus, the so-called complete transfer 18 19 20 21 22 23 24 25 26 27 28
relevance of this issue is additional in Plaintiffs' Response to Defendants' Motion In Limine, Doc# 497) For this very reason, since Garvey has been replaced as lead trial counsel for Defendants, Plaintiffs have added attorney Edward Garvey to the witness list given testimony that he was directly involved in this transaction. It is interesting that Defendants position is that there is "no extrinsic evidence" yet they have moved to exclude Edward Garvey from the witness list.
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bankruptcy proceedings. The question is what assets survived the bankruptcy proceedings, and as Plaintiffs have demonstrated, Plaintiffs' player contracts were never identified in the slightest manner during the bankruptcy proceedings or in the subsequent purchase of remaining assets by HGI. (Id. at ¶¶12, 18, 19, 22, 26) Simply stated, HGI now maintains it has an express ownership interest in Plaintiffs' publicity rights, yet in 1993, notwithstanding numerous attorneys, drafts of documents and extensive analysis, not one of Plaintiffs' contracts was identified as an asset during either the bankruptcy proceedings or the HGI transaction. 7. FUBU representatives have testified that during the execution of the HGI/FUBU licensing

of all assets supposedly included contracts which could not even be located, much less transferred.3 8. As a result, any evidence relating to the purported acquisition of Plaintiffs' contracts (i.e. consent) is highly relevant, and while potentially harmful to Defendants, it is not prejudicial to Defendants. WHEREFORE, Plaintiffs respectfully request that this Court enter an order denying Defendants motion in limine and ordering that Plaintiffs may offer any evidence relating to whether HGI purchased Plaintiffs' player contracts and/or that they are assets of HGI.

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DATED this 21st day of November, 2006. ROSENQUIST & ASSOCIATES By: ____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon

MORGAN & MORGAN, P.A. By: ____/S/ Clay M. Townsend_____________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 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

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
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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 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 Relating to Whether Plaintiffs' Player Contracts are Assets of HGI 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]

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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
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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 Defendants' Motion in Limine to Exclude any Evidence Relating to Whether Plaintiffs' Player Contracts are Assets of HGI 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

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

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