Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 [email protected] (602) 916-5414 Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY 634 W. Main Street, Suite 101 Madison, WI 53703 [email protected] (608) 256-1003 Attorneys for Defendants Harlem Globetrotters Int' Inc. l, and Mannie L. & Catherine Jackson Ira S. Sacks, admitted pro hac vice Safia A. Anand, admitted pro hac vice DREIER LLP 499 Park Avenue New York, New York 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 [email protected] Joel Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 21 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Attorneys for Defendant GTFM, LLC 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
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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., Plaintiffs, PROPOSED JOINT JURY INSTRUCTIONS No. CV-04-0299 PHX DGC and CV-041023 PHX DGC

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HARLEM GLOBETROTTERS
11 INTERNATIONAL, INC., et al.; 12 13 14 15 16 17 18 19 20 21 22 23
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Defendants. Plaintiffs, Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon (collectively referred to as "Plaintiffs"), through their respective undersigned counsel, and Defendants Harlem Globetrotters Int' Inc., Mannie L. & Catherine Jackson and GTFM, LLC (collectively l, referred to as "Defendants"),1 through their respective undersigned counsel, hereby submit their joint proposed jury instructions for trial.2

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Defendants reserve the right to amend these proposed jury instructions as a result of the Court' decision on in s limine motions.

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Absent a showing of good cause, the failure to submit a proposed instruction or make an objection in the joint pleading by the deadline set forth in the July 26, 2006 Order shall result in the instruction being refused or the objection being waived.

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SECTION I ­ NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS

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§ 1.1 DUTY OF JURY Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes

to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

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§ 1.2 CLAIMS AND DEFENSES To help you follow the evidence, I will give you a brief summary of the positions of the

parties: The Plaintiffs' claim that Plaintiffs' right of publicity was violated by Defendants' unauthorized use of Plaintiffs' name and/or likeness and other identifying characteristics on clothing developed, manufactured and sold by Defendants. The Defendants deny those claims and also contend that they had the right to use Plaintiffs' names and likenesses, and that Plaintiffs' claims are too late because the HGI Defendants have been using Plaintiffs' names and likenesses for promotion and merchandise for

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years. Plaintiffs' deny Defendants' claims.

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§ 1.3 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) (2) (3) the sworn testimony of any witness; the exhibits which are received into evidence; and any facts to which the lawyers stipulate.

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§ 1.4 WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in

deciding the facts of this case: (1) (2) (3) (4) statements and arguments of the attorneys; questions and objections of the attorneys; testimony that I instruct you to disregard; and anything you may see or hear when the court is not in session even if what you see

or hear is done or said by one of the parties or by one of the witnesses.

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§ 1.5 EVIDENCE FOR LIMITED PURPOSE Some evidence may be admitted for a limited purpose only. When I instruct you that and

item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

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§ 1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as

testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

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§ 1.7 RULING ON OBJECTIONS There are rules of evidence that control what can be received into evidence. When a

lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an

objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence to be stricken from the record and that you

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disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

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§ 1.8 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and

which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) (3) the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or prejudice; whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the evidence; and any other factors that bear on believability.

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(4) (5) (6) (7)

The weight of the evidence as to a fact does not necessarily depend on the number of the witnesses who testify.

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§ 1.9 CONDUCT OF THE JURY I will now say a few words about your conduct as jurors. First, you are not to discuss this

case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigations about the case on your own;

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Fourth, if you need to communicate with me simply give a signed note to the bailiff to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

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§ 1.10 NO TRANSCRIPT AVAILABLE TO JURY At the end of the trial, you will have to make your decision based on what you recall of

the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

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§ 1.11 TAKING NOTES If you wish, you may take notes to help you remember what witnesses said. If you do take

notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the jury room. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

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§ 1.12 OUTLINE OF TRIAL The next phase of the trial will now begin. First, each side may make an opening

statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The Plaintiffs will then present evidence, and counsel for the Defendants may crossexamine. Then the Defendants may present evidence, and counsel for the Plaintiffs may crossexamine. After the evidence has been presented, the attorneys will make closing arguments and I

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will instruct you on the law that applies to the case. After that, you will go to the jury room to deliberate on your verdict.

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§ 1.13 BURDEN OF PROOF- PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim or affirmative defense by a

preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

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§ 1.14 BURDEN OF PROOF-CLEAR AND CONVINCING EVIDENCE When a party has the burden of proving a claim or defense by clear and convincing

evidence, it means you must be persuaded by the evidence that it is highly probable that the claim or defense is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard. You should base your decision on all of the evidence, regardless of which party presented it.

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§ 2.1 CAUTIONARY INSTRUCTION-FIRST RECESS We are about to take our first break during the trial, and I want to remind you of the

instructions I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors; members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to ay news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors.

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If you need to speak with me about anything, simply give a signed note to the bailiff to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

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§ 2.2 BENCH CONFERENCES AND RECESSES From time to time during the trial, it may become necessary for me to talk with the

attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of theses conferences to a minimum. I may not always grant an attorney' request for a conference. Do not consider s

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my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

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§ 2.3 STIPULATED TESTIMONY The parties have agreed what certain witnesses' testimony would be if called as a

witnesses. You should consider that testimony in the same way as if it had been given here in court.

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§ 2.4 STIPULATIONS OF FACT The parties have agreed to certain facts that have been stated to you. You should

therefore treat these facts as having been proved.

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§2.5

JUDICIAL NOTICE

The court has decided to accept as proved certain facts that [e.g., the city of San Francisco is north of the city of Los Angeles], even though no evidence has been introduced on the subject. You must accept this fact as true.

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§ 2.6 DEPOSITION AS SUBSTANTIVE EVIDENCE When a person is unavailable to testify at trial, the deposition of that person may be used

at trial. A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. The deposition of [Witness], which was taken on [Date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. Do not place any significance on the behavior or tone of voice of any person reading the

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questions or answers.

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§ 2.13 USE OF INTERROGATORIES OF A PARTY Evidence is now to be presented to you in the form of answers of one of the parties to

written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions which were submitted in writing under established court procedures. The answers are entitled to the same consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were from the witness stand.

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§ 3.0 COVER SHEET

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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MEADOWLARK LEMON, et al., Plaintiffs vs.

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HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al., Defendants

) ) ) ) ) ) ) ) ) )

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

JURY INSTRUCTIONS

Dated: ________________________

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§ 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW Members of the jury, now that you have heard all the evidence and the arguments of the

attorneys, it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case.

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In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return ­ that is a matter entirely up to you.

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§ 3.2 WHAT IS EVIDENCE The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which have been received into evidence; and (3) any facts to which the lawyers have agreed or stipulated.

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§ 3.3 WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received into

evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, have said in their closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.

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(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court' ruling on it. s (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. [In addition some testimony and exhibits have been received only for limited purpose; where I have given a limiting instruction, you must follow it.] (4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

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§ 3.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such

as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

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§ 3.6 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and

which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice;

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(5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of the witnesses who testify.

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§ 3.7 OPINION EVIDENCE, EXPERT WITNESS You have heard testimony from [a] person[s] who, because of education or experience,

[is] [are] permitted to state opinions and the reasons for those opinions. Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case.

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§ 3.9 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE Certain charts and summaries that have not been received in evidence have been shown

to you in order to help explain the contents of books, records, documents, or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence.

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§ 3.10 CHARTS AND SUMMARIES IN EVIDENCE Certain charts and summaries have been received into evidence to illustrate information

brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

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§ 3.11 TWO OR MORE PARTIES-DIFFERENT LEGAL RIGHTS You should decide the case as to each Plaintiff and each Defendant separately. Unless

otherwise stated, the instructions apply to all parties.

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§ 3.12 IMPEACHMENT EVIDENCE-WITNESS You have heard evidence that certain witnesses have lied under oath on a prior occasion.

You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe this witness and how much weight to give to the testimony of that witness.

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§ 4.1 DUTY TO DELIBERATE When you begin your deliberations, you should elect one member of the jury as your

presiding juror. That person will preside over the deliberations and speck for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should.

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Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

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§ 4.2 USE OF NOTES Some of you have taken notes during the trial. Whether or not you took notes, you should

rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

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§ 4.3 COMMUNICATION WITH COURT If it becomes necessary during your deliberations to communicate with me, you may send

a note through the bailiff, signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone ­ including me ­ how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been

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discharged. Do not disclose any vote count in any note to the court.

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§ 4.4(MODIFIED) RETURN OF VERDICT A verdict form has been prepared for you. The form is divided into several sections, one

for each Plaintiff, followed by sections for certain defenses and other issues. You must reach a unanimous verdict on each question before answering it. After you have reached unanimous agreement on all of the questions, your presiding juror will fill in the verdict form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom.

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PL

§ 4.6 DEADLOCKED JURY Members of the jury, you have advised that you have been unable to agree upon a verdict

in this case. I have decided to suggest a few thoughts to you. As jurors, you have a duty to discuss that case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of

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the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict. All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position. I remind you that in your deliberations you are to consider the instructions, I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important. You may retire and continue your deliberations.

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ST

§ 5.1 BURDEN OF PROOF-PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim or affirmative defense by a

preponderance of the evidence, it means you must be persuaded by the evidence that the claim is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

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DF

§ 5.2 BURDEN OF PROOF ­ CLEAR AND CONVINCING EVIDENCE When a party has the burden of proof on any claim by clear and convincing evidence, it

means you must be persuaded by the evidence that it is highly probable that the claim is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard. You should base your decision on all of the evidence, regardless of which party presented it.

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PL Lemon/DF

§ 6.1 CORPORATIONS AND PARTNERSHIPS ­ FAIR TREATMENT

All parties are equal before the law and a corporation is entitled to the same fair and
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conscientious consideration by you as any party.

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§ 7.5 PUNITIVE DAMAGES

OBJECTION: Defendants object to this instruction. Plaintiffs have significantly modified the model instructions; thus, t is not properly part of the standard instructions. It is also improperly cumulative, since Plaintiffs have included a punitive instruction in Section II of this document and have not objected to Defendants' punitive instruction in Section IV. Moreover, it misstates the law of punitive damages. See Defendants' proposed instruction 6. Revised Arizona Jury Instructions, Personal Injury Damages 4 (4th ed.); Ninth Circuit Model Jury Instruction § 7.5; Thompson v. Better-Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992); Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-

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DGC (D.Ariz. 09/13/2006); Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985); Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330-31, 723 P.2d 675, 679-80 (1986); State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 425 (2003). If you find for the Plaintiffs you may, but are not required to, award punitive damages. The purpose of punitive damages is not to compensate the Plaintiffs' but to punish a defendant , and to deter a defendant and others from committing similar acts in the future. The Plaintiffs have the burden of proving that punitive damages should be awarded, and

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the amount, by a preponderance of the evidence. You may award punitive damages only if you find that a defendant' conduct was malicious, oppressive or in reckless disregard of a plaintiff' s s rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of a plaintiff' rights if, under the s
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circumstances, it reflects complete indifference to the plaintiff' safety and rights, or the s defendant acts in the face of a perceived risk that its actions will violate the plaintiff' right s under federal law. The failure to do something, such as conduct due diligence, may constitute willful intent to infringe a of Plaintiffs' rights.1 "Reckless disregard means in conscious

disregard of whether plaintiff had consented to the use of his name."3 OBJECTION: The failure to fully conduct due diligence is, at most, negligence, and does not support an award of punitive damages. Revised Arizona Jury Instructions, Personal Injury Damages 4 (4th ed.); Ninth Circuit Model Jury Instruction § 7.5; Thompson v. Better-Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992);

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Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-DGC (D.Ariz. 09/13/2006); Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985); Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330-31, 723 P.2d 675, 679-80 (1986); State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 425 (2003). An act or omission is oppressive if the person who [performs] [fails to perform] it injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by the misuse or abuse of authority or power or by the taking advantage of some weakness or disability or misfortune of the plaintiff.

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If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purpose but should not reflect bias, prejudice or sympathy toward any party. In considering punitive

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damages, you may consider the degree of reprehensibility of the defendant' conduct and the s relationship of any award of punitive damages to any actual harm inflicted on the plaintiff. You may impose punitive damages against one or more of the defendants and not others, and may award different amounts against different defendants. Punitive damages may be awarded even if you award plaintiff only nominal, and not compensatory, damages. Defendants' behavior during litigation discovery may justify punitive damages.2 If you award only nominal damages you are not limited to the use of a multiplier to assess punitive damages of the small amount of economic damages.4 OBJECTION: There was no evidence of such improper behavior during discovery.

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Authority: 1E&J Gallo Winery v. Consorzio del Gallo Nero, 782 F.Supp 472 (N.D.Cal. 1992).
2

Asphalt Eng' v. Galavha, 160 Ariz. 134, 135 (Ariz.Ct.App.1989); ; 3New York Pattern Jury rs

Instructions Division 3, E. Right of Privacy, p J13:46; 4Ortega-Guerin v. City of Phoenix, Slip Copy, 2006 WL 2403511 (D.Ariz).

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DF

§ 7.6 NOMINAL DAMAGES The law which applies to this case authorizes an award of nominal damages. If you find

for the Plaintiff but you find that the Plaintiff has failed to prove damages as defined in these instructions, you must award nominal damages. Nominal damages may not exceed one dollar.

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SECTION II ­ NON-MODEL JURY INSTRUCTIONS TO WHICH THE PARTIES HAVE STIPULATED

1.

AFFIRMATIVE DEFENSE OF ESTOPPEL

Defendants claim each Plaintiff must be estopped from claiming a violation of his publicity rights. To prove estoppel, Defendants must prove by a preponderance of the evidence that: 1) Plaintiff committed acts inconsistent with his current position that the apparel violates his publicity rights; 2) 3) Reliance by Defendants on Plaintiff' earlier acts; and s Defendants were injured by Plaintiff' repudiation of his prior conduct. s

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Source: Valencia Energy Co. v. Arizona Dep' of Revenue, 191 Ariz. 565, 576-77 (1998). t

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SECTION III ­ NON-MODEL INSTRUCTIONS REQUESTED BY PLAINTIFFS DEFENDANTS' GENERAL OBJECTION: Defendants received Plaintiffs' final version of this document at 2:00 Arizona time on November 15, 2006, two hours before the document was due to the court. The short timeframe has thus made it difficult to research and insert proper objections in this section. 1. APPROPRIATION OF THE COMMERCIAL VALUE OF A PERSON' S IDENTITY: THE RIGHT OF PUBLICITY

One who appropriates a person's identity by using without consent the person's name, likeness, or other indicia of identity for one' benefit is subject to liability for invasion of the s right of publicity. One who is liable for invasion of the right of publicity is liable for the pecuniary loss to the other caused by the appropriation or for the actor's own pecuniary gain

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resulting from the appropriation, whichever is greater.

Authority: Pooley v. National Hole-in-One Association, 89 F.Supp.2d 1108, 1111 (D.Ariz. 2000); One Restatement (Third) of Unfair Competition §46, §49 (1995). Restatement (Second) of Torts §652(c)(1977). Judge Campbell' Order date June 27, 2006 at page 13. s

OBJECTION: There was no evidence of pecuniary loss to any plaintiff. Moreover, this is an inaccurate and incomplete statement of the damages available. See

Defendants' Proposed Instructions 1, 6; SJ Order at 23 (Doc. # 425). Restatement (Third) of Unfair Competition §§ 46, 47; Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Pooley v. Nat' Hole-In-One Ass' l n, 89 F.Supp.2d 1108, 1112 (D.Ariz. 2000); Eastwood v. Superior Court, 198 Cal. Rptr.

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342, 348-49 (Cal. App. 1983); Summary Judgment Order, 6/27/06, Dkt. # 425;

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Restatement (Third) of Unfair Competition § 49, cmt. (d) & Rptr' Notes to Cmt. d s (stating that defendant' profits are an appropriate measure of relief in right of s publicity cases under rules analogous to the recovery of profits in trademark cases); Lindy Pen v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993); McClaran v. Plastic Indus., Inc., 97 F.3d 347, 361 (9th Cir. 1996); Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Gucci America, Inc. v. Daffy' s, Inc., 354 F.3d 228, 242 (3d Cir. 2003)

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2.

RIGHT OF PUBLICITY

Plaintiffs claim that Defendants violated their right of publicity. To prevail on a right of publicity claim, Plaintiffs must prove all of the following: (1) (2) the Defendants' used Plaintiffs' names, likenesses or identities; the appropriation of the Plaintiffs' names or likenesses to the Defendants' advantage; (3) (4) the Plaintiffs' did not consent to this use; and the use caused Plaintiffs to sustain injury.1

OBJECTION: This is an incomplete statement of the elements. See Defendants' Proposed
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Instructions 1, 5. Restatement (Third) of Unfair Competition §§ 46, 47; Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Pooley v. Nat' Hole-Inl One Ass' 89 F.Supp.2d 1108, 1112 (D.Ariz. 2000); Eastwood v. Superior Court, 198 Cal. n, Rptr. 342, 348-49 (Cal. App. 1983); Summary Judgment Order, 6/27/06, Dkt. # 425; Restatement (Third) of Unfair Competition § 49, cmt. (d) & Rptr' Notes to Cmt. d s (stating that defendant' profits are an appropriate measure of relief in right of publicity s cases under rules analogous to the recovery of profits in trademark cases); Lindy Pen v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993); McClaran v. Plastic Indus., Inc., 97 F.3d 347, 361 (9th Cir. 1996); Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117,

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124 (9th Cir. 1968); Gucci America, Inc. v. Daffy' Inc., 354 F.3d 228, 242 (3d Cir. 2003) s,

You may consider Plaintiffs' publicity rights to include their names, nicknames, numbers, likenesses or combinations thereof that constitute "indicia of identity."
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OBJECTION: There is no evidence that Plaintiffs' alleged numbers or caricatures were indicia of ownership and the jury should not be charged in that regard.

A nickname can be an "indicia of identity".7 You may use "common sense guided by the weight of the evidence" in determining a minimum threshold of identifiability in right of publicity actions.2 OBJECTION: That is an incorrect statement of the law and unsupported by the source cited. See Defendants' Proposed Instructions 1, 5. See sources in objections above.

Restatement (3d) of Unfair Competition § 46, cmt. d ("In most cases an appropriation of
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identity is accomplished through the use of the person' name or likeness.") s If a Plaintiff is "readily identifiable" on Defendants' product then his "likeness" has been used.3 OBJECTION: Plaintiffs' source for this instruction--3Newcombe v. Adolf Coors Company, 157 F.3d 686 (9th Cir. 1998)--interprets the standard for a right of publicity claim under Cal. Civ. Code § 3344, which is inapplicable here. See Defendants' Proposed Instructions 1, 5. See sources in objections above. Defendants' "advantage" need not be pecuniary4, and there is an advantage if Plaintiffs were used as "central figures" on products or the purpose of the use was to attract attention.3 OBJECTION: That is an incorrect statement of the law and unsupported by the source

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cited; Plaintiffs also cite the inapposite Newcombe case. Instructions 1, 5. See sources in objections above.

See Defendants' Proposed

Plaintiffs need not prove that Defendants were at fault or that they intended to identify Plaintiffs. Mistake regarding Plaintiffs' consent is not a defense.5
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OBJECTION: That is an incorrect statement of the law and unsupported by the source cited. Moreover, mistake is a defense to the request for punitive damages. See

Defendants' Proposed Instructions 1, 5, 6. See sources in objections above and Revised Arizona Jury Instructions, Personal Injury Damages 4 (4th ed.); Ninth Circuit Model Jury Instruction § 7.5; Thompson v. Better-Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992); Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-DGC (D.Ariz. 09/13/2006); Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985); Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330-31, 723 P.2d 675, 679-80 (1986); State

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Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 425 (2003).

"Injury" may be satisfied because Plaintiffs were not compensated for the use of his identity.3 Proof of customer confusion as to why merchandise bearing Plaintiff' identity was s actually purchased is not an element of liability,1 and Defendants can be liable for the entire harm if it is impossible to separate the consented use from the excess use.6 OBJECTION: Plaintiffs must prove that the appropriation of a Plaintiff' name or s

likeness was for Defendants'advantage, that consumers bought the FUBU/HGI Apparel as a result of Defendants' use of that Plaintiff' name or likeness on the apparel and not s

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because of other reasons, such as quality, color, price, styling or other trademarks, and that Defendants profited as a result of the use of that Plaintiff' name. Restatement (Third) s of Unfair Competition §§ 46, 47; Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Pooley v. Nat' Hole-In-One Ass' 89 F.Supp.2d 1108, 1112 l n,
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(D.Ariz. 2000); Eastwood v. Superior Court, 198 Cal. Rptr. 342, 348-49 (Cal. App. 1983); Summary Judgment Order, 6/27/06, Dkt. # 425. You may consider that use a name in conjunction with a likeness on a product could be construed as an endorsement of the product by the person depicted.8 Using a plaintiffs' name "to attract attention to a product" is evidence supporting a conclusion that the Defendants sought to obtain a commercial advantage.9 OBJECTION: This instruction improperly supports and comments on Plaintiffs' theory of the case. Product endorsement is not an issue in this case because Defendants did not use Plaintiffs' name on advertising. SJ Order at 11-12 (Doc. # 425).

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Authority: 1See Pooley v. National Hole-in-One Association, 89 F.Supp.2d 1108, 1111 (D.Ariz. 2000)(citing Eastwood v. Superior Ct., 198 Cal.Rptr.42, 346 (1983), also see Judge Campbell' s Order dated 6/27/2006 at p. 13; 2Publicity and Privacy §3.4 [c], Waits v. Frito-Lay, Inc., 978 F.2d 1093 (C.A.9 1992)[7]; 3Newcombe v. Adolf Coors Company, 157 F.3d 686 (9th Cir. 1998)(citing Eastwood); 4Restatement (Second) of Torts §652(c) cmt.(b); 5Restatement (Third) of Unfair Competition §46 cmt.(e)(1995); 6Restatement (Third) of Unfair Competition §46 cmt.(b)(c)(f); 7Restatement (Third) of Unfair Competition §46 cmt.(d); 8Abdul-Jabbar, cited herein; McCarthy, Rights of Publicity, §3.28. Eastwood, at 349, cited herein. See also Abdul-Jabbar cited herein, citing

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SEE OBJECTIONS ABOVE DEFENDANTS'ALTERNATIVE INSTRUCTION (Defendants'Proposed Instructions 1)

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Plaintiffs seek to recover damages from Defendants based upon a claim that Defendants appropriated Plaintiffs' names and likenesses for their commercial advantage. Each Plaintiff has the separate burden of proving all four elements of this claim by a preponderance of the evidence in order to recover from Defendants.

The four elements of this claim which each plaintiff must prove are:

ONE: Defendants appropriated that Plaintiff' name. s
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To show an appropriation, that Plaintiff must prove by a preponderance of the evidence that Defendants' use of their name or likeness was sufficient to identify the Plaintiff. Each Plaintiff must also prove by a preponderance of the evidence that Defendants' use was more than just an incidental use compared to the rest of the product line.

TWO: The appropriation of each Plaintiff' name was for Defendants' commercial advantage. s To prove that the appropriation of a Plaintiff' name or likeness was for Defendants' advantage, s that Plaintiff must prove by a preponderance of the evidence that consumers bought the FUBU/HGI Apparel as a result of Defendants' use of that Plaintiff' name or likeness on the s

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apparel and not because of other reasons, such as quality, color, price, styling or other trademarks, and that Defendants profited as a result of the use of that Plaintiff' name. s

THREE: Plaintiff did not consent to the appropriation.
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To prove that a Plaintiff did not consent to the appropriation, that Plaintiff must prove by a preponderance of the evidence that he did not consent by his actions or inaction, and that his player agreements did not give the HGI Defendants the right to use and license that Plaintiff' s publicity rights.

FOUR: The appropriation caused Plaintiff to sustain injury, damage, loss or harm. To prove the appropriation caused a Plaintiff to sustain injury, damage, loss or harm, that Plaintiff must prove by a preponderance of the evidence that the use of his name or likeness on the apparel caused him to suffer a direct injury, such as financial harm or lost opportunity. That

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is, that Plaintiff must show that consumers actually bought FUBU/HGI Apparel because his name or likeness was on it. That Plaintiff must show by a preponderance of the evidence that but for the sale of the apparel, he would not have been injured.

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3.

CONSENT

Conduct that would otherwise infringe the personal or commercial interests protected by the rights of privacy and publicity is not actionable if the conduct is within the scope of consent given by the holder of the right. Consent can be communicated through a formal agreement such as a license or assignment. The defense of consent extends only to conduct that is within the scope of the consent. Consent to use a person's identity may be restricted, for example, to certain uses (publicity as opposed to endorsements), products, or to certain media, or to a certain duration. OBJECTION: This improperly comments on and supports Plaintiffs'theory of the case.

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Additionally, consent may be express or implied and may be present without a signed agreement. Oral consent or implied consent is sufficient. Newton v. Thomason, 22 F.3d 1455, 1461 (9th Cir. 1994); Restatement (3d) of Unfair Competition § 46, cmt. (f). If the use is outside the scope of consent, the defendant is subject to liability for any harm resulting from conduct that exceeds the consent. If it is impossible as a practical matter to separate the harm resulting from the excess use from harm caused by the consented use, the defendant is subject to liability for the entire harm. OBJECTION: There is no such issue on separating the harm in this case. Consent cannot be given by an agreement that is unconscionable.

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OBJECTION: There is no evidence that the consent was unconscionable in this case. Consent may or may not be assignable depending on the language in the agreement.1 OBJECTION: There is no such issue in this case.

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Authority: Restatement (Third) of Unfair Competition §46, §49 (1995). Restatement (Second) of Torts §652(c)(1977). Judge Campbell' Order date June 27, 2006 at page 13. 1Miller v. s Glenn Miller Productions, 318 F.Supp.2d 923 (C.D.Cal.2004). SEE OBJECTIONS ABOVE ALTERNATIVE INSTRUCTION: Defendants do not propose an alternative instruction because this instruction is unnecessary.

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4.

LACK OF CONSENT

Plaintiffs must prove that Defendants did not have consent to use Plaintiffs' names and likenesses on the FUBU/HGI Apparel by the following: OBJECTION: Plaintiffs'entire Instruction 4 improperly comments on and supports Plaintiffs'theory of the case. I. The Language of the Contract and the Parties' Intent: a. Plaintiffs must prove that they did not expressly consent to the use of their names and likenesses with HGI or FUBU. That is, if there is no signed contract between Plaintiffs and Defendants, there is no consent for Defendants to use Plaintiffs' publicity rights;

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b. You may determine whether the Plaintiffs did not consent to the use upon the credibility of or inferences to be drawn from extrinsic evidence. OBJECTION: Plaintiffs'proposed Instruction 4(I) is unsupported by any authority. Consent may be express or implied and may be present without a signed agreement. Oral consent or implied consent is sufficient. Newton v. Thomason, 22 F.3d 1455, 1461 (9th Cir. 1994); Restatement (3d) of Unfair Competition § 46, cmt. (f); Ervco, Inc. v. Texaco Refining and Marketing Inc., 422 F.Supp.2d 1084 (D.Ariz 2006). II. HGI Did Not Buy Plaintiffs' Player Contracts: You may determine that even if Plaintiffs consented to use of their names and likenesses

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in employment agreements with predecessors to HGI, HGI did not acquire the right to sublicense the FUBU clothing deal or Plaintiffs' Player Contracts in 1993;

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OBJECTION: Plaintiffs' proposed Instruction 4(II) is unsupported by any authority. Furthermore, there is no evidence that HGI did not acquire the employment agreements and Defendants have filed a motion in limine to this effect.

III.

Plaintiffs' Contracts Were Extinguished in Bankruptcy:

You may determine that HGI could not buy Plaintiffs' Player Contracts because a) the contracts were executory (required ongoing performance), and b) the bankruptcy of the prior owner IBC extinguished Player Contracts because they were not specifically identified in the

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Bankruptcy proceedings; You must decide whether the Plaintiffs' Player Contracts are "executory" in deciding whether IBC' bankruptcy in 1992 extinguished the old Player Contracts. s A contract is executory if "the obligations of both parties are so far unperformed that the failure of either party to complete performance would constitute a material breach and thus excuse the performance of the other. The Players' Contracts were executory contracts under the Bankruptcy Code if performance was due to some extent on both sides. Under the Player Contracts and relevant legal authority, both the Players and IBC had material performance obligations upon

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confirmation of the plan. Plaintiffs contend that this covenant-not-to-sue obligation and the alleged ongoing publicity rights are sufficient to support a finding that their contracts are executory under the

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Bankruptcy Code and had to be specifically identified to survive the bankruptcy and pass through the new owner. If you decide that Plaintiffs' Player Contracts are executory then they are extinguished by bankruptcy if not listed in the inventory of assets during IBC' bankruptcy. s If you decide that 1) the Player Contracts were executory contracts for purposes of Section 365 of the U.S. Bankruptcy Code on May 26, 1993, and 2) IBC rejected all of its Player Contracts pursuant to Article X, Section A of its plan effective May 26, 1993, you may find that: 1. IBC' rejection committed a material breach of the Player Contracts such that IBC s

had no legal right to assign the benefits of the Player Contracts including but not limited to the
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right to assign the purported licenses; and 2. The purported licenses could not be transferred to HGI pursuant to the

Assignment, nor transferred to Mannie Jackson pursuant to the Asset Purchase Agreement. Section 365(a), Chapter 11 U.S. Bankruptcy Code; In re Larson Inc., 290 B.R. 504 (D.Del 2003); Cameron v. Pfaff Plumbing and Heating, Inc., 966 F.2d 414, 416 (8th Cir.1992); NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522 (1984). OBJECTION: Plaintiffs'proposed Instruction 4(III) is unsupported by any authority for the principles cited. Furthermore, Plaintiffs are barred from challenging transactions related to the bankruptcy because the bankruptcy court' order approving the plan of s

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reorganization is res judicata on whether assets passed through bankruptcy. 11 U.S.C. § 1141(a), (b); Katchen v. Landy, 382 U.S. 323, 334 (1966); In re Clinton Street Food Corp., 254 B.R. 523, 530-31 (S.D.N.Y. 2000). Even if the issues raised in this instruction are proper, they are matters of law for the Court-- primarily, contract interpretation-- and
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not the jury. Mendler v. Winterland Prod., Ltd., 207 F.3d 1119, 1121 (9th Cir. 2000). Plaintiffs'instruction also improperly informs the jury that "under the player contracts and relevant legal authority, both the Players and IBC had material performance obligations upon confirmation of the plan," rendering a finding of materiality inevitable.

SEE ADDITIONAL OBJECTIONS ABOVE ALTERNATIVE INSTRUCTION: No alternative instruction is needed because none of the issues identified in this instruction are properly before the jury.

IV.

HGI Could Not Sublicense Plaintiffs' Publicity Rights Without Express Written Approval You may determine that even if HGI bought Plaintiffs' Player Contracts, HGI could not

lawfully sublicense Plaintiffs' publicity rights to FUBU without the Plaintiffs' prior written approval under California law.1 OBJECTION: The requirements of California law are inapposite to this case since

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Plaintiffs have availed themselves to the laws of Arizona. Furthermore, there was no requirement under any of the agreements to obtain consent to sublicensing. V. The Publicity Provisions in Plaintiffs' Player Contracts are Unconscionable

OBJECTION: There is no evidence of unconscionability in this case. SJ Order at 16 (Doc. # 425). Furthermore, Plaintiffs are barred by laches from claiming unconscionability. Defs.' Jt. In Limine Motion to Exclude Evidence Related to Alleged Unconscionability of Plaintiffs'Player Contracts, 11/15/06.
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You may determine that Plaintiffs did not consent because their Player Contracts were unconscionable. If you find that a contract or term thereof is unconscionable at the time the contract is made, you may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result. Some types of terms are not enforced, regardless of context (i.e., provisions for unreasonably large liquidated damages). A contract may be treated as unconscionable when it is improvident, oppressive, or totally one-sided. Factors relevant to finding a contract unconscionable include the following: 1. whether the contracts were procured by taking advantage of the condition, circumstances or necessity of the Plaintiffs; 2. 3. whether there was a gross disparity in the values exchanged; whether there was a gross inequality in the bargaining positions of the parties together with terms unreasonably favorable to the stronger party; 4. 5. the age and education of the contracting parties, and their commercial experience; whether the Plaintiffs had a meaningful choice when faced with unreasonably unfavorable terms of the contract; 6. 7. whether the Plaintiffs had counsel; whether the publicity clauses constitute an unreasonable non-compete. A restrictive term that tends to prevent an employee from a similar vocation after termination of employment is disfavored by the law and will be strictly construed.2 If you find the circumstances existing when the contracts were entered into by Plaintiffs in this case were such that the terms of the contract were unconscionable, the contracts cannot
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8.

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be used by Defendants for Plaintiffs' consent, and Defendants did not have the consent of Plaintiffs to use their names and likenesses. You may apply the state law of the state referenced in Plaintiffs' last executed Player Contracts, or the state of Arizona, to determine whether the contracts are unconscionable:3 OBJECTION: Plaintiffs' contention that the jury may apply the law of the State of Arizona is unsupported. 1. California (Rivers, Thornton, Lemon): Under California law, a contract is

unenforceable if it is both procedurally and substantively unconscionable. The parties may present evidence as to its commercial setting, purpose, and effect to aid you in making the

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determination.

The procedural aspect is manifested by: 1) oppression, which refers to an

inequality of bargaining power resulting in no meaningful choice for the weaker party; or (2) surprise, which occurs when the supposedly agreed-upon terms are hidden in a document, while substantive unconscionability, on the other hand, refers to an overly harsh allocation of unjustifiable risks. 4 2. Minnesota (Sanders): A contract is unconscionable if "it is such as no man in his

senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other." Minnesota statutes contain a provision identical to the California statute cited above.5 3. Arizona: A claim of unconscionability can be established with a showing of

substantive unconscionability alone.6 4. Illinois (Haynes, Hall): An agreement is substantively unconscionable if it is

overly harsh or one-sided.7
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5.

Delaware (Neil):

The question of unconscionability involves whether the

provision amounts to the taking of an unfair advantage of one party over the other.8 Unconscionability is a flexible doctrine designed to allow the consideration of numerous factors in determining whether the contact is unconscionable.9 You may consider the "setting, purpose and effect" at the time Plaintiffs signed employment contacts.10 OBJECTION: Plaintiffs do not accurately state the law requiring a showing of

substantive or procedural unconscionability and misstate the standards for showing unconscionability in each of the states referenced. SJ Order, 6/27/06 (Doc. # 425).

Furthermore, merely showing unequal bargaining power or a contract of adhesion is not
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enough, even when "the inequality results in an allocation of risks to the weaker party." Restatement (2d) of Contracts § 208, cmt. (b) & Reporter' Notes. s Authority: 1Miller v. Glenn Miller Productions, 318 F.Supp. 923 (C.D.Cal.2004); Hudson