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

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Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiffs vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al., Defendants ) ) ) ) ) ) ) ) ) )

Case No. CV 04-0299 PHX-DGC Case No. CV 04-1023-PHX-DGC

DEFENDANTS' OPPOSITION TO PLAINTIFFS' JOINT MOTION FOR PRE-ADMISSION OF EXHIBITS AND EVIDENCE Defendants GTFM, LLC ("GTFM" or "FUBU"), Harlem Globetrotters International, Inc. and Mannie L. and Catherine Jackson (collectively referred to as the "HGI Defendants") (GTFM and the HGI Defendants are collectively referred to as "Defendants") submit this memorandum in opposition to Plaintiffs' Joint Motion for PreAdmission of Exhibits and Evidence ("Plaintiffs' Pre-Admission Motion"). That motion must be denied for several reasons. First, as set forth in our prior motion to strike, filed November 1, 2006 (the "Motion to Strike"), the exhibits and evidence violate at least three Court Orders. Moreover, the exhibits and evidence at issue

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are not admissible at all, much less without supporting testimony. The exhibits and evidence are not summaries, but rather contorted calculations based on myriad assumptions, requiring expert testimony. Finally, there is no basis for "pre-admission."

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On October 30, 2006, Defendants received a new expert report from Plaintiffs, increasing Plaintiffs' alleged damages from under $2 million to over $12 million and increasing the number of alleged infringing styles from nine to nearly 80, in violation of several court orders. See Sacks Decl. ¶ 3.1 On November 1, 2006, Defendants received a further new expert report from Plaintiffs, adding alleged damages of $92,000 for sales by someone other than Defendants in Japan, and correcting the October 30 numbers, adding another $1 million in alleged damages. See Sacks Decl. ¶ 4. Then, on November 2, 2006, Plaintiffs attempted to enter these expert reports ­ which violate at least three of this Court's Orders and come 13 months after the close of discovery and over 14 months after Plaintiffs' expert disclosures were due ­ into evidence as summaries pursuant to FRE 1006. This should not be permitted. See Sacks Decl. ¶ 5. As we have previously shown in our Motion to Strike, Plaintiffs have repeatedly disregarded this Court's orders regarding expert discovery. The new disclosures as to which Plaintiffs seek pre-admission violate at least three Court orders. See Sacks Nov. 1

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References to "Sacks Decl." refer to the Declaration of Ira S. Sacks, dated November 16, 2006, submitted herewith.

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Decl. ¶¶ 10, 14.2 The arguments made in the Motion to Strike are incorporated herein by reference and will not be repeated. Further, the alleged summaries Plaintiffs now seek to admit ­ referred to herein as

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"Exhibit H" or "the Phipps II and III Analyses" ­ are not summaries at all. Rather, they are expert reports that make assumptions about (i) consumer purchasing patterns; (ii) the market effect of certain styles; and (iii) the market effect of hangtags and labels. The "alleged summaries" then go on to make allocations and calculations, and extract subsets

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of data, instead of summarizing data. Thus, rather than summarizing data, the Phipps Declarations and related Exhibit H are expert reports, concededly done in the manner that GTFM "suggested" in criticizing what the Abalos Report could have done but did not do. See Plaintiffs' Pre-Admission Motion, pgs. 6-7. Indeed, none of the reports in Exhibit H are summaries of FUBU, Jordache or the Japanese licensee's data or documents. To the contrary, Exhibit H consists of numerous expert schedules listing chosen styles, without disclosure as to the relevancy of those particular styles and without any basis to suggest why consumers bought those styles. Exhibit H is merely Plaintiffs' attempt to submit another expert report because the Abalos Report was precluded.3

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The "Sacks Nov. 1 Decl." refers to the declaration of Ira S. Sacks, dated November 1, 2006 and submitted in support of Defendants' Motion to Strike.
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The arguments made herein are without prejudice to Defendants' other in limine motions regarding the Phipps I Analysis (the Sales Chart) or Defendants' Motion to Strike.

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Additionally, in further violation of this Court's orders, Plaintiffs are seeking to pre-admit several exhibits, including Exhibit H, most of which are inadmissible. Pursuant to the Court's July 26, 2006 Order (the "July 26 Order"), in limine motions are

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limited to three pages. Finally, Plaintiffs have fabricated a Motion to Pre-Admit Evidence without any supporting authority. Their motion should be denied on that basis as well. I. PLAINTIFFS' EXHIBIT H IS NOT A SUMMARY AND SHOULD NOT BE ADMITTED INTO EVIDENCE FOR ANY PURPOSE

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This Court need not even reach the merits of Plaintiffs' Pre-Admission Motion. Exhibit H should be precluded for the reasons set forth in the Motion to Strike.

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If this Court reaches the merits, Exhibit H should not be pre-admitted into evidence as a summary of voluminous evidence pursuant to FRE 1006. Plaintiffs'

Exhibit H is not a summary and should not be admitted into evidence as substantive evidence or as a pedagogical exhibit. To the contrary, Exhibit H is an expert report,

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made up of complicated calculations ­ even more complicated than those contained in Plaintiffs' precluded expert report (the "Abalos Report"). These calculations are based on unsupported assumptions, interpretations of styles, in some cases rely on inadmissible evidence, fail to fairly represent the underlying documents, and are irrelevant. Thus, Exhibit H cannot be pre-admitted as a FRE 1006 summary. See Sacks Decl. ¶ 6. The Phipps Declarations and related Exhibit H charts are clearly expert reports and admittedly attempt to correct the inaccuracies in Plaintiffs' original expert report by Ms. Abalos, which was precluded by the June 27 Order. Indeed, Mr. Phipps states in his

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10/27/06 affidavit that he "utiliz[ed] FUBU's methodology outlined in their Reply brief in order to breakdown style numbers and reported sales by individual player. Individual players were matched up to the garments by using the CAD drawings, as the names and

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numbers of the players can clearly be viewed on the garment. The methodology used is as such (excerpt taken from FUBU's Reply brief Doc #228, page 5-6)..." See Sacks Nov. 1 Decl., Exhibit B, ¶¶ 13, 15(d); Sacks Nov. 1 Decl. ¶¶ 9, 23. This is in direct violation of this Court's previous orders.

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Moreover, as set forth more fully below, Exhibit H does far more than summarize voluminous data. Rather it is an allocation fraught with assumptions and calculations of the very type Ms. Abalos could have done and did not do. See Sacks Nov. 1 Decl. ¶ 23. Exhibit H has charts labeled A through G for each of the seven Plaintiffs. Charts A and B merely repeat the HGI letter and the prior Phipps Sales Chart. Charts C through G repeatedly attempt to correct the errors and omissions in the Abalos Report for each of the seven Plaintiffs. Moreover, Exhibit H also adds sales by a Japanese licensee to the claimed damages ­ in the amount of $92,000 ­ sales which were not made by GTFM. See Sacks Nov. 1 Decl. ¶ 19. The proponent of a summary under FRE 1006 must establish a foundation that (1) the underlying materials upon which the summary is based are admissible in evidence; and (2) the underlying documents were made available to the opposing party for inspection. Paddack v. Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984).

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Moreover, summaries must fairly represent the underlying documents and cannot be admitted if they do not do so. See Davis & Cox v. Summa Corp., 751 F,2d 1507, 1516
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(9th Cir. 1985) superceded by statute on other grounds (finding that at least one of the compilations was not a summary under Rule 1006 because it did not "fairly represent" the underlying documents). Finally, even if the summaries meet the requirements of Rule

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1006, they must also be relevant under Rule 401 and pass muster under Rule 403. This Circuit has recognized that summaries "are normally prepared by an interested party and therefore may not be completely accurate or may be tainted with the preparing party's bias. Additionally, juries may be misled by the summaries ...

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Summaries, therefore, must be scrutinized by the trial court to ensure that they are accurate, complete, not unduly prejudicial, limited to the relevant issues, and confined by the appropriate jury instructions." United States v. Leon-Reyes, 177 F.3d 816, 820 (9th Cir. 1999)(cited by Plaintiffs). Exhibit H does not meet the requirements for summaries set forth above. To the contrary, Exhibit H contains irrelevant information, is unduly prejudicial, inaccurate, will mislead the jury, and fails to fairly represent the underlying documents. Thus, Exhibit H cannot be admitted into evidence. A. Exhibit H Is Irrelevant

In addition to being expert reports and a violation of several of this Court's prior orders, on their face, without more, the dozens of charts comprising Exhibit H are irrelevant and therefore inadmissible. See Sacks Decl. ¶ 7. To be admissible into evidence, the charts in Exhibit H must be supported by proof that they are relevant, i.e., there must be a preliminary showing that consumers bought the FUBU/HGI Apparel

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styles listed on the charts because of the use of the Plaintiffs' identities. There has been no such showing. See, e.g. United States v. Wood, 943 F.2d 1048, 1054 (9th Cir. 1991)
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(chart was not supported by evidence that defendant had customers; district court did not err in masking or in declining to admit the chart)(cited by Plaintiffs). Here, for the charts to be admitted, there must be testimony at trial that the charts

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are relevant. Not only does that bar "pre-admission", but there will be no such evidence at trial. There is no evidence that consumers purchased the FUBU/HGI Apparel as a result of Plaintiffs' names on the apparel.

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There is no evidence that consumers identified Plaintiffs' alleged jersey numbers or the caricatures on the FUBU/HGI Apparel with Plaintiffs, or purchased the FUBU/HGI Apparel as a result of the use of the numbers or caricatures.

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There is no evidence as to the number of garments within a style that contained the "Legends" hangtag and no evidence that any consumer purchased the FUBU/HGI Apparel with the Legends hangtag as a result of the hangtags and not as a result of other factors, such as the FUBU and

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Harlem Globetrotters trademarks or the garment's quality, color or price. Without such proof, the charts comprising Exhibit H are irrelevant, because all of the charts assume that the styles at issue were purchased because they contained names, numbers, caricatures or some portion of them had Legends hangtags. See Sacks Decl. ¶ 8.

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B.

Exhibit H Does Not Fairly Represent the Underlying Documents

Exhibit H also fails under FRE 1006 because the numerous charts in Exhibit H do not fairly represent the underlying evidence. Indeed, throughout the charts in Exhibit H,

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Mr. Phipps makes improper assumptions and calculations and misrepresents the underlying data. Thus, the reports do not fairly represent the underlying documents and are delusive and/or baseless. Below is a summary of the various charts that make up Exhibit H and some of their inaccuracies.

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The Japanese Chart

The Japanese Chart in Exhibit H fails to accurately represent the underlying data and would be misleading to the jury. Specifically, it allocates sales in Japan among Plaintiffs by allocating sales of styles among the number of players' names or numbers set forth on the styles, by dividing total sales by the number of players' names or numbers used in the style. It does so despite the fact that GTFM and HGI did not sell in Japan. Rather, as Plaintiffs are well aware, the Japanese sales were by a licensee and GTFM only received a royalty, and not sales revenues. Mr. Phipps misrepresents the fact that the Japanese data was for sales by a Japanese licensee, not for sales by GTFM to a separate customer in Japan. See Sacks Nov. 1 Decl. ¶¶ 19, 21. Moreover, Mr. Phipps fails to explain where the numbers in the Japanese report come from or how he calculated his results.4 Sacks Decl. ¶ 9.

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Plaintiffs conveniently failed to disclose this report until November 1, 2006, after the parties had already exchanged exhibits and exhibit lists. Defendants produced the information regarding the Japanese

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2.

Charts "A" and "B"

Charts "A" and "B" for each of the Plaintiffs merely replicate information set forth in the HGI Letter and the Sales Chart. The seven "B" charts ­ and the Sales Chart ­

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summarize data for nine selected styles, with no explanation as to why those styles are relevant. Moreover, the "B" charts are deceptive. For instance, in Chart B for Marques Haynes ­ which is illustrative of all of the charts ­ Mr. Phipps has mislabeled the chart "FUBU Report." These numbers are not a FUBU Report; rather they are taken from the

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licensee during discovery and Ms. Abalos included the Japanese sales in her expert report, which was submitted on August 19, 2005. Thus, it is curious that Plaintiffs waited until November 1, 2006 to submit Mr. Phipps' report on Japanese sales. Sacks Nov. 1 Decl. ¶¶ 29-30.

Phipps Sales Chart. Further, the Notes column makes it appear that the numbers therein were not available until September 29, 2005. This is false. GTFM produced the sales detail reports and CADS for these styles on January 7, 2005. In fact, GTFM produced very few documents at the end of discovery, only 49 pages out of the 1690 pages that were produced. The B charts attempt to mislead this Court and the jury and do not merely summarize voluminous documents. See Sacks Nov. 1 Decl. ¶ 33. 3. The "C" Charts

The seven "C" charts are not summaries. Rather they are charts which involve a selection of styles by Mr. Phipps and inaccurate calculations regarding those styles. There is no explanation for why Mr. Phipps assumed that consumers purchased those styles because of anything to do with Plaintiffs. Sacks Decl. ¶ 10.

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What is more, many of the Plaintiffs' "C" charts include data that is incorrect and grossly overstated, perhaps intentionally so. Many of the styles set forth in the "C" charts are women's styles. Each "C" chart calculates alleged damages "by dividing total sales

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by number of players that appear on garment."

However, even if Mr. Phipps'

assumptions were valid ­ which they are not ­ that calculation overstates GTFM's revenues by 6.66 times. As Plaintiffs are well aware, the women's sales were by

Jordache, a licensee of GTFM. GTFM received a royalty of 15% of Jordache sales, a
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point recognized by Ms. Abalos in her report, and not the sales revenues. Thus, Mr. Phipps is overestimating Plaintiffs damages in the "C" charts and not summarizing voluminous documents. See Sacks Decl. ¶ 11. 4. The "D1" and "D2" Charts

Charts "D1" and "D2" for each Plaintiff in Exhibit H are not a summary of anything. These charts include a selection of styles by Mr. Phipps without basis in the record, divide the sales in those styles by nine, and then allocate the resulting alleged damages among all Plaintiffs, all of which has to be attempted to be explained by a witness at trial. The styles selected by Mr Phipps supposedly include styles which used some of the Plaintiffs' names on a list of "Legends" that was used on some garments and

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some hangtags, as a part of (or as an incidental attachment to) the garments.5 See Sacks Decl. ¶ 12. First, the notion that any consumer buys a garment because of a small hangtag,

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and not for what is on the garment, its quality, color or price, makes no sense. Despite that fact, Mr. Phipps allocates $101,435 to each Plaintiff as a result of the hangtags. See Sacks Nov. 1 Decl. ¶ 40. What is more, there is no evidence as to the number of garments that had these

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hangtags, or whether any consumer bought any garment because of a hangtag. Sacks Decl. ¶ 8. Additionally, Mr. Phipps divides total sales of these styles by nine because there are nine legends listed, only six of whom are Plaintiffs in this action. Despite the fact that Marques Haynes is not listed as a legend and Mr. Phipps admits this in Chart "F", Mr. Phipps allocates damages to Haynes in Charts "D1" and "D2" as a result of the "Legends" lists. See Sacks Nov. 1 Decl. ¶ 38.

Moreover, Chart "D1" indicates that the player's name was listed on the hangtag for many of these styles, but then in the notes on the chart indicates that it is "missing tag". That is true, for example, for Styles PT15882SHS, HGB2003LS, HGB3000S and HGB2375LS for Haynes alone. See Sacks Nov. 1 Decl. ¶ 39.

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There is no evidence that the hangtags were used as a marketing device. Plaintiffs' repeated citation to the testimony of FUBU representative and FUBU Bates #1242 and 1244 for that position mischaracterizes the underlying evidence. Sacks Decl. ¶ 13.

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Thus, Charts "D1" and "D2" are baseless, irrelevant, inaccurate, unduly prejudicial and would mislead the jury. 5. The "E" and "F" Charts

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The seven Charts "E" and "F" of Exhibit H are not summaries. Chart "E" appears to be styles that Mr. Phipps forgot to include in his Phipps I Analysis (the Sales Chart). Many of those calculations are wrong because they reflect volumes of women's sales, instead of the royalty received by GTFM. And, as stated above, Chart "E" is irrelevant

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because there is no explanation of record as to why Mr. Phipps chose the styles that are on the charts. Moreover, there has been no testimony as to whether consumers purchased these styles because they have a Plaintiffs' name or alleged number on them. See Sacks Decl. ¶ 14.6 Chart "F" is not a summary and seems to contain the same general information as Charts "D1" and "D2". There is no explanation as to why Mr. Phipps listed these particular styles, where Mr. Phipps got the numbers for the calculations (which are wrong as to all of the women's styles), and there has been no showing of relevance because Plaintiffs have offered no evidence to show that any sales were made as a result of

Plaintiffs assert that "[t]hese are styles that were extracted from FUBU documents (Ex. A) some of which were produced later after the original charts were prepared." See Plaintiffs' Pre-Admission Motion, pg. 9. This is incorrect. FUBU produced all of its documents before the discovery cutoff on September 30, 2005. The first time the Sales Chart was produced to Defendants was with the summary judgment motions in November 2005. Moreover, many of the styles set forth in the "E" charts were produced as early January 7 and February 4, 2005. See Sacks Decl. ¶ 16.

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Plaintiffs' names, alleged numbers and/or caricatures on the jerseys and/or the hangtags. See Sacks Decl. ¶ 15. C. All of the Underlying Evidence Was Not Made Available to Defendants

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Exhibit H also fails under FRE 1006 because all of the underlying evidence was not made available to Defendants. Specifically, Defendants have never had the

opportunity to evaluate the garments for authenticity. The only times Defendants were able to view the garments were at the Phipps Deposition and at the meeting to exchange

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documents on October 31, 2006, neither of which were sufficient to evaluate the authenticity of the garments. Although Plaintiffs have attached an email string where GTFM's counsel requested the garments and offered to preserve the chain of custody between Morgan & Morgan and Dreier LLP, counsel for the Neal Plaintiffs never sent the garments to GTFM as requested. Thus, GTFM has had no opportunity to verify that the underlying garments on which Mr. Phipps bases his assumptions are even authentic. Moreover, Defendants did not even know that there was a damage issue with respect to the garments until October 31, 2006 when Plaintiffs received the Phipps II Analysis. See Sacks Decl. ¶¶ 17-19. Additionally, Plaintiffs falsely state that "Defendants not only reviewed Plaintiffs' charts on February 16, 2005, but wrote back on April 8, 2005..." Plaintiffs' Pre-

Admission Motion, pg. 5. Defendants were not even aware of the Sales Chart until November 2005, when Plaintiffs produced the documents in connection with the

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summary judgment motions. The charts Plaintiffs refer to only included sales for eight styles and did not have any information regarding Plaintiff Lemon. Moreover, the charts
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that were sent were represented to be attorney work product, and were not submitted with an affidavit from Mr. Phipps, precluding Defendants from questioning Mr. Phipps about the charts in his deposition. Plaintiffs did not submit an affidavit from Mr. Phipps in

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connection with the charts until two months after his deposition. See Sacks Decl. ¶ 20. D. Plaintiffs' Actions Have Unduly Prejudiced Defendants

Plaintiffs' untimely disclosure of the Phipps II and II Analyses is unfairly prejudicial to Defendants. The late disclosure make it impossible for Defendants to rebut

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these Analyses. If Plaintiffs had submitted the Phipps II and III Analyses as an expert report when their expert report was due on August 19, 2005, GTFM would have retained two experts: one in rebuttal to the numbers set forth in the Phipps II and III Analyses and one on causation relating to the effect of hangtags and labels. GTFM did not do so because at that time GTFM could rely on the Abalos deposition to test Plaintiffs' expert's numbers and Ms. Abalos sought no damages regarding the hangtags or labels. Defendants were successful in their attempt to preclude the Abalos Report. To permit the Phipps II and III Analyses now would vitiate this Court's prior rulings and be highly prejudicial to Defendants. See Sacks Nov. 1 Decl. ¶¶ 24-26. Plaintiffs argue that Defendants may attack the summary at trial.7 However, this is false. Defendants have no ability to timely respond to the Phipps II and III Analyses.

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Plaintiffs cite to two unpublished decisions for the proposition that a summary chart is admissible despite claims that it is "unverified" or "self-calculated", if the opponent has the opportunity to reveal any inaccuracies through cross-examination, United States. v. LeFevbre, 29 F.3d 636 (9th Cir. 1994) and United States. v. Whistler, 139 Fed.Appx. 1 (9th Cir. 2005). The Ninth Circuit Rules state that

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Defendants have had no opportunity to prepare responsive analyses before November 15, 2006. Defendants have had no opportunity to prepare responsive expert materials.

Defendants have had no opportunity to depose Mr. Phipps on his analyses. See Sacks
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Nov. 1 Decl. ¶ 17. II. THE PRE-ADMISSION REQUEST HERE IS BASELESS AND A VIOLATION OF COURT ORDER

Plaintiffs' Pre-Admission Motion is based on their assertions that FRE 401 permits the pre-admission of evidence. Plaintiffs cite to Contemporary Mission Inc. v. Famous Music Corp., 557 F.2d 918 (2d Cir. 1977) for this proposition. Neither FRE 401 nor Contemporary Mission discuss pre-admitting evidence and exhibits. Indeed, in the

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Contemporary Mission case, Contemporary sought to introduce a statistical analysis together with expert testimony during the trial. Id. at 926. At best, Plaintiffs should have made a motion in limine to obtain a ruling on the admissibility of their Exhibits A-J. Pursuant to the Court's July 26 Order, they would

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"[u]npublished dispositions and orders of this Court are not binding precedent, except where relevant under the doctrine of law of the case, res judicata, and collateral estoppel... A copy of any cited unpublished disposition or order must be attached to the document in which it is cited, as an appendix." See U.S.Ct. of App. 9th Cir. Rule 36-3, 28 U.S.C.A. Thus, the cases cited by Plaintiffs are not binding precedent and Plaintiffs violated this Rule by failing to attach copies of the cases to their motion.

have been limited to three pages. Thus, Plaintiffs' Pre-Admission Motion should be denied on that basis as well.

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CONCLUSION Based on the foregoing, Defendants respectfully request that Plaintiffs' PreAdmission Motion be denied in its entirety.

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DATED: November 16, 2006 DREIER LLP GARVEY McNEIL & McGILLIVRAY, S.C. By ____/s/ Edward R. Garvey___________ Edward R. Garvey Christa Westerberg 634 W. Main St. #101 Madison, WI 53703 Telephone: 608-256-1003 Ray K. Harris Fennemore Craig, P.C. 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Mannie L. & Catherine Jackson

By _____/s/ Ira S. Sacks_________ Ira S. Sacks Safia A. Anand 499 Park Avenue New York, New York 10022 Telephone: 212-328-6100 Joel L. Herz, Esq. State Bar Number 015105 La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, Arizona 85718-3206 Telephone: 520-529-8080 Attorneys for Defendant GTFM, LLC

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