Free Declaration - District Court of Arizona - Arizona

1 2 3 4 5 6 7

Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

8 MEADOWLARK LEMON, a married man, 9 10 vs. 11 HARLEM GLOBETROTTERS INTERNATIONAL, DECLARATION INC., an Arizona corporation; HARLEM OF CLAY M. TOWNSEND IN SUPPORT OF 12 GLOBETROTTERS INTERNATIONAL NEAL PLAINTIFFS' MOTION FOR LEAVE FOUNDATION, INC., an Arizona corporation; TO ANSWER THE COURT'S REQUEST FOR 13 MANNIE L. JACKSON and CATHERINE EVIDENCE LOCATION DURING ORAL JACKSON, husband and wife; FUBU THE ARGUMENT AT SUMMARY JUDGMENT 14 COLLECTION, LLC, a New York limited liability HEARING company doing business in Arizona; GTFM, LLC, a 15 New York limited liability company doing business in Arizona; 16 Defendants. 17 18 FRED "CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" THORNTON, 19 ROBERT "SHOWBOAT" HALL, MARQUES HAYNES and JAMES "TWIGGY" SANDERS, 20 Plaintiffs, vs. 21 22 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM 23 GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation; 24 MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE 25 COLLECTION, LLC, a New York limited liability 26 company, GTFM of Orlando, LLC; and GTFM, LLC, a New York limited liability company doing business in Arizona, Plaintiff,

Case 2:04-cv-00299-DGC

Document 420

Filed 06/05/2006

Page 1 of 10

1

Defendants.

2 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, 3 Counter-claimant, vs. 4 5 MEADOWLARK LEMON, a married man, 6 7 8 9 10 11 12 13 "SHOWBOAT" HALL, MARQUES HAYNES and JAMES "TWIGGY" SANDERS, (hereinafter 14 15 16 17 18 19 20 21 22 23 5. 24 25 26 27 28
Case 2:04-cv-00299-DGC

Counter-defendant.

DECLARATION OF CLAY M. TOWNSEND IN SUPPORT OF NEAL PLAINTIFFS' MOTION FOR LEAVE TO ANSWER THE COURT'S REQUEST FOR EVIDENCE LOCATION DURING ORAL ARGUMENT AT SUMMARY JUDGMENT HEARING Clay M. Townsend declares as follows under penalty of perjury pursuant to 28 U.S.C. §1746: 1. I am partner in the firm of Morgan & Morgan, P.A., attorneys for Plaintiffs FRED

"CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" THORNTON, ROBERT

collectively "Plaintiffs"). 2. Pursuant to Fed.R.Civ.P. 56(e), and L.R.Civ.P. 56.1, I respectfully submit this declaration in

support of the Neal Plaintiffs' Motion for Leave to Answer the Court's Request for Evidence Location During Oral Argument at Summary Judgment Hearing, and state: 3. knowledge. 4. The Court specifically asked whether Plaintiffs pleaded damages by individual Plaintiffs in its Other than expressly set forth herein, the matters set forth herein are based on my personal

briefs and exhibits. The answer was yes. Next the Court inquired as to where in the record it could locate: a) b) Plaintiffs' evidence of damages to the individual Plaintiffs (the Court had heard argument as to the total "pool" of alleged damages in Plaintiffs' expert report), and Plaintiffs' evidence of alternate measure of damages using "reasonable royalty rates."

-2Document 420

Filed 06/05/2006

Page 2 of 10

1 2 3 4 5 6

6.

As to a) Plaintiffs' counsel stated that he was sure such assertions and exhibits were in the

record, but he would have to "think real hard" as to where exactly they were. The Court told him to do so, but given the sheer volume of briefs and pleadings, the fact that Plaintiffs' exhibits were filed under seal and on disk, and that the clerk had assigned new document numbers, counsel could not give the specific citations immediately even though the exhibits were filed and in the record. 7. Plaintiffs believe that this Court desired a complete answer and Plaintiffs are able to provide

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

it. 8. Plaintiffs' record evidence which directly answers the Court's question is Exhibit 13D (Ex. C

to this Declaration which has been entered by the clerk as Doc. #373 Part 26), which breaks down sales (damages) by individual player, and Merchandise Schedule by individual Plaintiff (Exhibit 13A-- investigation by name, number, style and image documenting 113 garments) attached to Plaintiff's investigator's affidavit (Phipps Aff. Ex. 13). Exhibit 13 Phipps Aff. is Exhibit A to this Declaration which has been entered by clerk as Doc. #369 Part 9, and Exhibit 13A Merchandise Schedule is Exhibit B to this Declaration. Exhibit 13 D shows the following at: Section a. HGI royalty payments from FUBU sales Exhibit 9A were used to prepare Ex. 13D (these sales numbers can be used to disgorge profits or to calculate royalties due to individual Plaintiffs utilizing the 25% rate in the Collective Bargaining Agreement). Ex. 9A was exhibit 2 to investigator Phipps' Deposition conducted by FUBU and HGI. Section b. Sales Analysis derived from FUBU sales reports which show significantly more sales than reported by HGI. The Plaintiffs' prepared numbers were their non-expert investigator's best effort to extrapolate individual sales from FUBU data which listed no names just some numbers and styles--making the process very arduous. Section c. Additional style numbers located in the marketplace by the investigator that appeared to be associated with Plaintiffs' names but for which FUBU maintained it had no more information (FUBU refused to turn over data as to Plaintiffs player numbers stating they were not infringing). 9. This schedule is cited to in numerous filings by Plaintiffs: -3Document 420

Filed 06/05/2006

Page 3 of 10

1 2 3 4 5 6

a.

Plaintiffs' Response to FUBU's Motion for Summary Judgment (Doc. #256 at P. 5, 7, 8, 11) as to Plaintiffs' names, numbers and images being used on a variety of types of garments and hangtags, even utilizing Neal's image.

b.

Plaintiffs' Statement of Facts and Contraverting Facts in Response to FUBU's Motion for Summary Judgment (Doc. #254 at ¶22 referencing Ex. 9A; ¶¶ 26, 52 referencing Exs. 13 infringing garments; ¶¶ 55-57, 85, 88).

7 8 9 10 11 12 13 14 15 16 17 f. 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

c.

Plaintiffs' Response to HGI's Motion for Summary Judgment (Doc. #278 at p. 2 line 24; p. 4 lines 14-15; p. 5 lines 4 and 15; p. 7 line 12; p. 9 line 18; p. 24, line 6)(as to the FUBU sales report showing the Foundation making money "off their names").

d.

Plaintiffs' Statement of Facts in Response to HGI's Statement of Facts (Doc. #281 at ¶ 22)(sales attributable to Plaintiffs), ¶¶ 29, 52 (referencing Exs. 13 infringing garments), ¶¶ 53, 55-57, 96, 98, 118.

e.

Declaration in Support of Plaintiffs' Response to HGI's Motion for Summary Judgment (Doc. #273, ¶ 23--Ex. 9A; ¶¶ 30-32--Ex. 13A-D referencing schedules of infringing sales by individual player). Plaintiffs' Statement of Facts (Doc. #290 at ¶ 22--referencing Ex. 9A; ¶24). Plaintiffs' Reply to HGI's Response to Plaintiffs' Motion for Summary Judgment (Doc. #319 at page 4 lines 18-24 [Ex. 13 as to FUBU's and HGI's use of names, hangtags, and digital images]; P. 5 line 19 [HGI's use]; page 7 lines 6-7 [as to Ex. 13A documenting the false implications of endorsement]).

g.

h.

Plaintiffs' Reply to HGI's Response to Plaintiff Neal's Statement of Facts (Doc. #310, at ¶ 14 [Ex. 9A authentication]; ¶ 20 [Ex. 13 documenting garments and hangtags]).

-4Document 420

Filed 06/05/2006

Page 4 of 10

1 2 3 4 5 6

i.

Plaintiffs' Statement of Facts in Support of Plaintiffs' Reply to HGI's Response to Plaintiffs' Motion for Summary Judgment (Doc. #314, at ¶ 22 [Ex. 9A]; ¶ 52 [Ex. 13 referencing schedules of merchandise]; ¶ 57; ¶ 98 [Ex. 13A schedules of merchandise with hang tags); ¶ 118 [Ex. 13 infringing merchandise]; RNSOF ¶ 10 [Ex. 13A]; RNSOF ¶ 22 (Ex. 9A and Ex. 13]; RNSOF ¶ 24 [Ex. 9A]; RNSOF ¶ 28 [Ex. 9A]; RNSOF ¶ 33 [Ex. 9A "breaks down the exact amount derived from Plaintiff's names

7 8 9 10 11 12 13 14 15 16 17 (Doc. #319), Section III, lines 20-26 for evidence that all Plaintiffs had royalty rates of 8% from HGI, 25% 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

going to the Foundation"]; RNSOF ¶ 43 [Ex. 13]). j Plaintiffs' Reply to FUBU's Response to Plaintiffs' Motion for Summary Judgment (Doc. #318, at p. 2 lines 10-13 [Ex. 13 as to FUBU's uses]; p. 2 lines 15-16 [Ex. 13 schedules]; p. 6 lines 15-16; p. 6 lines 25-26). k Plaintiffs' Reply to GTFM's Objection to Plaintiffs' Statement of Facts and Further Statement of Facts (Doc. #308, at ¶9 [as to Ex. 13]; ¶¶ 10, 13 [as to images]; ¶ 18 [Ex. 1e providing "record evidence" and sales of infringing styles never reported by FUBU]; ¶ 43(1)[Ex. 13A schedules]; ¶ 43(2); ¶ 43(12)). 10. As for b) evidence of royalty rates, Plaintiffs' counsel directed the Court to its Reply Brief

from the CBA, and Neal's last contract had 25% and 75% royalty rates depending on the source of the income. This evidence includes Plaintiffs' Exhibit 9(A)--HGI's Schedule of Individual Players, and Exhibit 63(Ex. D to this Declaration)--HGI's Letter confirming a 25% royalty on bobblehead dolls. 11. Additional evidence of royalty rates filed by Plaintiffs include: a. Plaintiffs' Response to FUBU's Motion for Summary Judgment (Doc. #256 at P. 22 ­ 25% CBA royalty).

-5Document 420

Filed 06/05/2006

Page 5 of 10

1 2 3 4 5 6

b.

Plaintiffs' Statement of Facts and Contraverting Facts in Response to FUBU's Motion for Summary Judgment (Doc. #254 at ¶¶ 89-90--referring royalty rate evidence).

c.

Plaintiffs' Response to HGI's Motion for Summary Judgment (Doc. #278 at P. 16 Line 15; P. 22 line 13; P. 25 line 16).

d. 7 8 9 10 11 12 13 14 15 16 17 f. g. e.

Plaintiffs' Statement of Facts in Response to HGI's Statement of Facts (Doc. #281 at ¶ 26--8% royalty; ¶ 90--stating HGI established the market royalty rate; ¶¶ 99, 102--lengthy description of royalty rate evidence; ¶ 103). Declaration in Support of Plaintiffs' Response to HGI's Motion for Summary Judgment (Doc. #273, ¶ 23--referencing Ex. 9A and the 8% royalty; ¶ 89-- referencing Ex. 63 Garvey Letter re: 25% royalty). Plaintiffs' Statement of Facts (Doc. #290 at ¶ 26 ­ 8% royalties). Plaintiffs' Reply to HGI's Response to Plaintiffs' Motion for Summary Judgment (Doc. #319, at page 1 lines 23-26 [royalty rates]; page 6 lines 20-26 [as to injuries for not being compensated royalty rates]; p. 8 lines 26-27 [25% royalties paid to Neal and Hanes by HGI]).

18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

h

Plaintiffs' Reply to HGI's Additional Statement of Facts (Doc. #311, at ¶ 6--25% royalties; ¶ 28).

i.

Plaintiffs' Reply to HGI's Response to Plaintiff Neal's Statement of Facts (Doc. #310, at RNSOF ¶ 26 [8% royalties]; RNSOF ¶ 45 [Neal 25% royalties]).

j.

Plaintiffs' Statement of Facts in Support of Plaintiffs' Reply to HGI's Response to Plaintiffs' Motion for Summary Judgment (Doc. #314, at ¶ 26 [8% royalties]; ¶ 68; ¶ 74; ¶ 75(d); ¶ 80; ¶ 83; ¶ 87; ¶ 90 [HGI setting the reasonable rate of 25%]; ¶ 99; ¶¶ 102-104; [royalty rates, history, contracts, and profits as damages]).

-6Document 420

Filed 06/05/2006

Page 6 of 10

1 2 3 4 5 6

k.

Plaintiffs' Reply to FUBU's Response to Plaintiffs' Motion for Summary Judgment (Doc. #318, at p. 10 lines 25-28; p. 11 lines 1-4 [royalty rates] ¶ 43(28)[Ex. 9A royalties]; ¶ 43(33) [CBA 25% royalties]).

l.

Plaintiffs' Reply to GTFM's Objection to Plaintiffs' Statement of Facts and Further Statement of Facts (Doc. #308, at FUBU DSOF ¶¶ 9-10; ¶¶ 17-18; ¶ 38; and reply to additional statement of facts contained therein at ¶¶ 1-2; ¶ 6; ¶ 9; ¶ 12; ¶ 21).

7 8 9 10 11 12 13 14 15 16 By: 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

12.

Plaintiff's Investigator prepared the individual damage assessments using FUBU sales reports and his investigations of actual sales in the marketplace. This process was described in investigator Phipps' affidavit. His efforts are described in his affidavit Exhibit 13 (Exhibit A to Clay Townsend's Declaration). At ¶ 16, Phipps' describes the difficulty extrapolating the information from the FUBU sales reports, which, as testified by FUBU representatives, were not broken down by player, name, number or style.

DATED this 5th__day of June, 2006.

____/S/ Clay M. Townsend___________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

PLEASE TAKE FURTHER NOTICE that copies of the above-referenced documents have been served via first class mail upon the following attorneys:

-7Document 420

Filed 06/05/2006

Page 7 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Joel L. Herz, Esquire LAW OFICES OF JOEL L. HERZ LaPolma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tuscon, AZ 85718-3206 Attorney for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Edward R. Garvey, Esq. and Christa Westerberg, Esquire GARVEY AND STODDARD 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esquire Florence M. Bruemmer, Esquire ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Safia A. Anand, Esquire Ira S. Sacks, Esquire DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Certificate of Service

20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

Vanessa Braeley, declares as follows: 1. I hereby certify that on June 5th, 2006, a true and correct copy of Clay M. Townsend's Declaration was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Joel Herz ­ [email protected], [email protected] Ira Sacks ­ [email protected]

-8Document 420

Filed 06/05/2006

Page 8 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on June 5th, 2006, a true and correct copy of this Declaration, postage paid thereon, was sent via U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz LAW OFFICES OF JOEL L. HERZ LaPolma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tuscon, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Edward R. Garvey Christa Westerberg GARVEY AND STODDARD 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Intl Inc. and Harlem Globetrotters Int'l Foundation Safia Anand, Esquire and Ira S. Sacks, Esquire DREIER LLP 499 Park Ave. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC 3. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: June 5th, 2006.

-9Document 420

Filed 06/05/2006

Page 9 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

-10Document 420

Filed 06/05/2006

Page 10 of 10