Free Response to Motion - 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 (608) 256-1003 Attorneys for Defendants Harlem Globetrotters Int' Inc., l, Harlem Globetrotters International Foundation, Inc., and Mannie L. & Catherine Jackson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC DEFENDANTS'JOINT RESPONSE TO THE NEAL PLAINTIFFS'MOTION FOR LEAVE TO ANSWER THE COURT' S REQUEST FOR EVIDENCE LOCATION

13 MEADOWLARK LEMON, et al., 14 15

Plaintiffs, vs.

HARLEM GLOBETROTTERS 16 INTERNATIONAL, INC., et al.;
17

Defendants.

18 HARLEM GLOBETROTTERS

INTERNATIONAL, INC., an Arizona 19 corporation,
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Counterclaimant, vs. MEADOWLARK LEMON, a married man, Counterdefendant.

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Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Mannie L. and Catherine Jackson (collectively referred to as the "HGI Defendants"), along with Defendant GTFM, LLC ("GTFM") (the HGI Defendants and GTFM are collectively referred to as "Defendants") submit this joint response in opposition to the Neal
1 Plaintiffs' Motion for Leave to Answer the Court' Request for Evidence Location During Oral s

Arguments ("Plaintiffs' Motion"). (Doc. # 419, 6/5/06). Plaintiffs' Motion sets forth untimely arguments that contradict their previous filings, and does not support Plaintiffs' newfound claims for individualized damages.

ARGUMENT
Plaintiffs' Motion states that at the June 2, 2006 hearing in this matter, "[t]he Court requested specific citations to Plaintiffs' evidence of damages by individual plaintiff." (Mot. at 2, Doc. # 419). The Motion goes on to assert that such evidence already exists in the summary judgment record and purports to identify it in an accompanying Declaration from the Neal Plaintiffs' attorney, Clay Townsend. (Id.; Townsend Dec., Doc. # 420). These assertions are incorrect and Plaintiffs cannot refer to some alternative basis for calculating individual damages at this late stage. I. Plaintiffs Had An Obligation to Put Forward Evidence Relating to Damages Separated By Individual Plaintiff

As the Court noted in oral argument on June 2, 2006, where (as here) the non-movant bears the burden of proof at trial, the movant may satisfy its burden by pointing out an absence of evidence to support an essential element of the non-movant' case. Celotex Corp. v. Catrett, s 477 U.S. 317, 322-25 (1986). GTFM asserted in its motion for summary judgment and

supporting papers that summary judgment was required here because, among other reasons, Plaintiffs' expert report does not analyze damages by individual plaintiff. Instead of submitting evidence to the contrary, Plaintiffs blamed GTFM for their expert report' deficiencies, and s

The Neal plaintiffs include plaintiffs Neal, Rivers, Thornton, Haynes, Hall, and Sanders.

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affirmatively stated that the Expert Report estimates damages for individual plaintiffs "as much as possible." Plaintiffs did not refer at all to some alternative basis for calculating individual damages, and eschewed any such approach. Specifically, GTFM pointed out in its Statement of Facts in support of its Motion for Summary Judgment that: "Plaintiffs' Expert Report . . . does not analyze plaintiffs' alleged damages by individual plaintiff, but only in the aggregate." (GTFM Statement of Facts ¶ 91, Doc. #181 (emphasis added) ("GTFM SOF")). Under Rule 56, to contradict that assertion, Plaintiffs had an obligation to set forth admissible evidence illustrating that they did analyze damages by individual plaintiff. Plaintiffs did no such thing and instead relied exclusively on their Expert Report and blamed FUBU for the report' deficiencies. s Instead, Meadowlark Lemon stated "Plaintiff affirmatively disputes ¶ 91 of GTFM' s SOF. Plaintiff affirmatively asserts that the Expert Report estimates the income Plaintiff lost as a result of GTFM' conduct, what a reasonable royalty would be, and damages by individual s plaintiff as much as possible... . Plaintiff further asserts that it was GTFM who refused to provide information regarding profits broken down by individual plaintiff." (Lemon' Stmt. of s Contraverting Facts in Support of Pl. Meadowlark Lemon' Resp. to Def. GTFM' Mot. for s s S.J.("Lemon' SOCF"), ¶ 48, Doc. #248, (emphasis added)). The Neal Plaintiffs filed a Joinder s to Lemon' SOCF. (Neal Pls' Joinder Mot., Doc. #249). s Plaintiffs took the same approach in their Joint Response to GTFM' Motion to Strike s Plaintiffs' Expert Report. In response to GTFM' assertion and showing that the Expert Report s should be stricken because it was irrelevant for failing to estimate individual damages, Plaintiffs stated: GTFM asserts that Plaintiffs' expert report does not set compensatory damages for the individual Plaintiffs, only for all Plaintiffs in the aggregate. However, Plaintiffs' expert did calculate compensation based on the individual Plaintiffs as much as possible, both by player name and number as shown on the schedules used by Plaintiffs' expert. See Affidavit of Plaintiffs' Expert, Sandy Abalos, ¶ 2, 6, Attached as Exhibit "A". It was the Defendants information that was incomplete. See Exhibit "A" ¶ 3-5. GTFM never provided Plaintiffs with a
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complete breakdown of profits by individual Plaintiff, and in depositions, representatives of FUBU even acknowledged that the information was not broken down in that manner. See Exhibit "A" ¶ 5. (Pls' Jt. Resp. to GTFM' Mot. to Strike Pls' Expert Report at 3, Doc. # 220 (emphasis added)). s Thus, Plaintiffs relied exclusively on their expert report and the damage calculations contained therein to support their claims. Plaintiffs specifically stated that the expert report estimates damages by individual plaintiff as much as possible. Plaintiffs' last minute attempt to offer another measure of damages is exactly the type of sandbagging that Plaintiffs' counsel eschewed during oral argument. As Defendants demonstrated at the hearing, Plaintiffs had the ability to estimate individual damages and did not do so in response to the summary judgment motion. That failure is fatal to Plaintiffs' claims. II. Plaintiffs' Submissions Did Not Use the Globetrotters' Letter To Allocate Damages By Individual Plaintiff

In oral argument the Court inquired as to whether Plaintiffs' briefs and other summary judgment submissions indicated that they would attempt to use a letter from the Globetrotters2 to allocate damages by individual plaintiff. Despite Plaintiffs' recent submissions, the answer is an unequivocal no. Indeed, Plaintiffs' Motion fails to point to any references in the record where this letter is used, standing alone or in combination with Plaintiffs' expert report, to break down damages by individual plaintiff. At most, the royalty payments reflected in the letter appear to be listed in a chart prepared by Plaintiffs' investigator and others, which is a far cry from using the ratio of royalties in the letter to divide up Defendants' profits by individual plaintiff, as Plaintiffs are now attempting to claim. (Townsend Dec. at 3, ¶ 8(a), Doc. # 420.) Plaintiffs' summary judgment filings failed to give Defendants any notice that Plaintiffs were even contemplating this newly developed approach, even though Plaintiffs have possessed
Plaintiffs' Motion identifies this letter as their Exhibit 9A, an October 8, 2003, letter to the players from Mannie Jackson. (Townsend Dec. at 3, Doc. # 420.) At oral argument, Defendants believed Plaintiffs were referring to an October 31, 2003, letter to the players from Globetrotters CFO Michael Syracuse. (E.g., Syracuse Aff., ¶ 12 & Ex. K, Doc. # 208.)
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the letter since October 2003. Instead, Defendants were astonished by this new argument when it was first introduced last week in oral argument. Once again, Plaintiffs actions amount to exactly the type of sandbagging that Plaintiffs' counsel said they disclaimed during oral argument. Plaintiffs' total failure to properly allocate damages by individual plaintiff in their oppositions to Defendants' summary judgment motions and GTFM' Motion to Strike is no s one' fault but their own, and their late attempts to refer to some alternative basis for calculating s individual damages should be denied.

CONCLUSION
Based on the foregoing, Plaintiffs' Motion should be denied in its entirety or disregarded by the Court. RESPECTFULLY SUBMITTED this 8th day of June, 2006. By: s/ Ray K. Harris____________ Edward R. Garvey, admitted pro hac vice Christa Westerberg, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Telephone: 608-256-1003 Facsimile: 608-256-0933 [email protected] Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Facsimile: 602-916-5999 [email protected] Attorneys for Defendants Harlem Globetrotters Int' Inc., Harlem Globetrotters Int' Foundation, l, l and Mannie L. & Catherine Jackson

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By: s/ Ira S. Sacks____________ 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 THE LAW OFFICES OF JOEL HERZ 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Attorneys for Defendant GTFM, LLC CERTIFICATE OF SERVICE 1. I hereby certify that on June 8th, 2006, a true and correct copy of the attached document was electronically transmitted to the Clerk' Office using the CM/ECF System for s 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] Edward R Garvey [email protected], [email protected], [email protected] Robert Williams Goldwater III [email protected] Ray Kendall Harris [email protected], [email protected] Joel Louis Herz [email protected], [email protected] Alec R Hillbo [email protected], [email protected] Brandon Scott Peters [email protected], [email protected], [email protected] Anders V Rosenquist , Jr [email protected] Ira S Sacks [email protected] Clay M Townsend [email protected], [email protected]; [email protected] Christa O Westerberg [email protected]

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2. I hereby certify that on June 8th, 2006, a true and correct copy of the attached document was sent via U.S. Mail, postage paid thereon, to the following parties, at the addresses listed: Keith R. Mitnik Morgan Colling & Gilbert PA 20 N. Orange Ave. Suite 1600 Orlando, FL 32802 s/Melody Tolliver

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