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 REGARDING WHETHER THE NEAL PLAINTIFFS' PLAYER CONTRACTS ARE EXECUTORY 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

16 Regarding Whether the Neal Plaintiffs' Player Contracts are Executory, and state as follows: 17 18 19 20 21 22 23 24 25 support that use with appearances, etc. (Plaintiffs' SOF¶75, 79-87, Doc#314). 26 1. Defendants assert in their Motion that Plaintiffs asserted that "their player contracts are

executory because each contained publicity provisions, which they interpret as covenant not to sue obligations." (See Plaintiffs' Motion for Summary Judgment at ¶14, Doc. #279). While this Court denied Plaintiffs' Summary Judgment Motion, stating "Plaintiffs had not shown covenant not to sue obligations are material under applicable state law" (Order, page 15)1, other executory provisions were material as well, namely, the same publicity provision that HGI has relied on to justify the FUBU licensing agreement ­ a purported perpetual right for them to exploit Plaintiffs' publicity rights coupled with Plaintiffs' obligation to

1

Citing In Re Wegner, 839 F.2d 533, 536 (9th Cir.1988).

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2.

As noted in Plaintiffs' Reply, Document 319, "the Amended Joint Disclosure Statement

(Exhibit 72C certified Amended Joint Disclosure Statement dated April 20, 1993) is crystal clear that "The Debtors will reject all executory contracts except those...which are listed in the `Schedule of Assumed Executory Contracts' attached as Exhibit A hereto." None of Plaintiffs' contracts were listed. 3. While this Court at page 15 of its Order of June 27, 2006 noted that license agreements are

6 not "universally considered executory contracts", there is nothing in this Court's ruling that excludes such 7 8 9 10 11 12 13 14 15 16 perform and enjoy important publicity rights provisions of these contracts. Again, using HGI's logic, if 17 Plaintiffs prevented HGI from exploiting the remaining publicity rights obligations, a jury could find that 18 19 20 21 22 23 24 25 26 evidence of whether the publicity provisions are material and the player contracts are executory is irrelevant, 27 28
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evidence to help a jury determine whether Plaintiffs' consent to exploitation was in effect, or material breach. For example, because HGI asserts that it has an enforceable term in the publicity provision, and additionally because HGI asserts that it paid consideration for such a provision, using HGI's logic, it would have been a material breach for Plaintiffs to have refused to perform these material obligations to support the perpetual exploitation of their publicity rights under the agreements, or to "consent" to HGI's continued use. 4. Given HGI's position, HGI should be estopped from denying that the publicity provisions

are material terms and that the contracts are executory as HGI takes the ironic position that it continues to

such would be a material breach of these contracts. 5. This Court ruled that the state law of Plaintiffs' individual player contracts governs whether

or not there was a material breach of executory contracts for purposes of 11 U.S.C.A. §1113 of the Bankruptcy Code, and Plaintiffs' cited the relevant law, (Order, page 15). instructions address this and the Court may instruct the jurors to the law. 6. While Defendants' Motion discusses the various state law which may govern the issue of Plaintiffs' proposed jury

whether or not Plaintiffs' old player contracts were executory, the crux of Defendants' Motion is that ANY

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would mislead the jury and be unduly prejudicial to Defendants. That is, Defendants' Motion appears to hinge on F.R.E. 401-403, notwithstanding the liberal admissibility underpinnings of these rules.2 7. Plaintiffs assert that the issue as to whether or not Defendant HGI acquired the consent of

Plaintiffs from a predecessor to HGI to exploit Plaintiffs' identities for the purposes of a merchandise endorsement is a central issue to this dispute.

6 8. 7 8 9 10 11 12 13 14 15 16 accomplishing an orderly resolution to the disposition of assets. If an executory contract is not specifically 17 identified, it is deemed rejected when all the dust settles from the bankruptcy proceedings. Plaintiffs have 18 19 20 21 22 23 24 25 26 27 28
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 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). 3 The Court may recall that HGI did not purchase the Harlem Globetrotters directly from bankruptcy, but rather from yet another Harlem Globetrotter's entity that was formed to purchase the assets of the Harlem Globetrotters from the bankruptcy trustee. (See Plaintiffs' Reply to HGI's Response to Summary Judgment, "C" page 10, Doc# 319; Plaintiffs' Summary Judgment Motion, "C", page 12-17, Doc# 279).
2 Evidence

Because consent is one of the essential elements to this dispute, the issue as to whether or

not, notwithstanding the bankruptcy of HGI predecessor, (International Broadcasting Corporation), HGI could have possibly acquired such a consent by way of purchase of Plaintiffs' old player contracts is highly relevant. It is clearly within the province of a jury to determine whether certain provisions in Plaintiffs' old player contracts are material, require additional performance and/or were breached. Jurors decide similar contractual issues on a regular basis. 9. The purpose of the Bankruptcy Code is to provide for an orderly identification and As previously briefed by Plaintiffs in this matter, the filers of

distribution of assets and liabilities.

bankruptcy petitions are admonished to specifically identify executory contracts for purposes of

demonstrated that Plaintiffs' old player contracts were never specifically identified as executory contracts for purposes of the bankruptcy and therefore, they were rejected by the bankruptcy trustee and not acquired by the new owner, namely Harlem Globetrotters, Inc., yet another predecessor to HGI.3 10. Plaintiffs respectfully request this Court enter an order denying Defendants' Motion

requesting that evidence relating to whether the player contracts are executory be excluded.

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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. Towsend_____________ 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Robert Williams Goldwater, III ­ [email protected] 23 24 25 26 27 28 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 -5Case 2:04-cv-00299-DGC Document 519 Filed 11/21/2006 Page 5 of 7 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 Evidence Regarding Whether the Neal Plaintiffs' Player Contracts are Executory 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] 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 Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon 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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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 Evidence Regarding Whether the Neal Plaintiffs' Player Contracts are Executory 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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