Free Reply to 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 DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON' S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

13 MEADOWLARK LEMON, et al., 14 15

Plaintiffs, vs.

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

Defendants.

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

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Defendants Harlem Globetrotters International, Inc. ("HGI"), Mannie & Catherine Jackson, and the Harlem Globetrotters International Foundation, Inc. ("HGIF" or "the Foundation"), collectively, "HGI Defendants," reply to Plaintiff Curly Neal et al.' ("the Neal s Plaintiffs' and Plaintiff Lemon' (collectively, "Plaintiffs' response to the HGI Defendants' ") s ") motion for summary judgment. Plaintiffs have not met their burden to set forth specific facts, supported by admissible evidence, showing that a genuine, material issue exists for trial on each claim. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). FACTS HGI Defendants rely various statements of fact filed in this case.1 Remarkably few facts Plaintiffs have cited in their statements of facts make it into Plaintiffs' response briefs. The Neal Plaintiffs cite many facts in their brief that are not included in or supported by any statement of fact they have filed, in violation of LRCiv 56.1(a). Plaintiffs misrepresentations of fact and "bare assertions"-- of which there are several-- "are insufficient to create a material issue of fact and defeat a motion for summary judgment" Hedrick v. Cargill Steel, 2003 U.S. Dist. LEXIS 13768, *3 (D. Ariz. 2003). ARGUMENT I. THE JACKSONS AND THE FOUNDATION ARE IMPROPER PARTIES It is undisputed that HGI, and not the Jacksons nor the Foundation, was a party to the License Agreement at issue in this case. (DSOF ¶ 67, Doc 196.) Plaintiffs do not cite sufficient facts or law to establish liability of the Jacksons or the Foundation. (Neal SJ Resp., Doc. 278, at 22-25; Lemon SJ Resp., Doc 282, at 2-5.)

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The statements of fact are cited as follows: HGI Defendants'Statement of Fact ("DSOF"), Doc 196 The Neal Plaintiffs' Responses to HGI' Statement of Fact ("NRDSOF"), Doc 281 s Plaintiff Lemon' Statement of Controverted Facts ("LSOCF"), Doc 283 s HGI' Reply to the Defendants' Statement of Fact ("RDSOF"), filed with this Reply s HGI' Reply to Plaintiff Neal' Additional Statements of Fact ("RNASOF"), filed with this Reply s s HGI' Reply to Plaintiff Lemon' Additional Statements of Fact ("RLASOF"), filed with this Reply s s

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A.

Mannie Jackson

Plaintiffs fail to cite sufficient facts to show any personal liability by Mr. Jackson. Plaintiffs cannot show that Mr. Jackson profited individually from the License Agreement, or more specifically, from the Apparel' depiction of Plaintiffs' names. Therefore, he cannot be s held liable as an HGI employee.2 Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., et al., 772 F.2d 505, 519 (9th Cir. 1985); Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., et al., 886 F.2d 1545, 1555 (9th Cir. 1989). Plaintiffs contend that "Mr. Jackson' liability is . . . not a s function of piercing the veils of his alter ego corporations" (Neal SJ Resp., Doc 282, at 22) though they would need to make precisely this showing to hold Mr. Jackson liable as a shareholder. United States v. Bestfoods, et al., 524 U.S. 51, 61-62 (1998) (citing cases). Finally, Plaintiffs have not alleged and shown any facts that would make Mr. Jackson liable as a corporate officer of HGI. As even the cases Plaintiffs cite (and selectively quote) acknowledge: "corporate officers and shareholders are generally shielded from personal liability." Holley v. Crank, 258 F.3d 1127, 1133-34 (9th Cir. 2001) (finding limited exception in civil rights cases). "Courts have . . . consistently stated that a corporate executive will not be held vicariously liable [for torts], merely by virtue of his office." Murphy Tugboat Co. v. Shipowners & Merchants Towboat Co., 476 F. Supp. 841, 854 (N.D.Cal. 1979) (finding corporate officer not personally liable), aff' 658 F.2d 1256, 1257 (9th Cir. 1981), cert denied, d, 455 U.S. 1018 (1982); see also Brink v. First Credit Res., 57 F. Supp. 2d 848, 862 (D.Ariz. 1999) (finding corporate officers violated Fair Debt Collection Practices Act because they "materially participated" in illegal debt collection activities). Plaintiffs cannot simply assert Mr. Jackson' position as CEO of the Globetrotters to show individual liability. Rather, they must s show that he participated in, approved, or ratified conduct which is "inherently unlawful."

The Neal Plaintiffs allege Mr. Jackson "was given the personal benefit of a New York apartment in Trump Tower as part of the FUBU licensing agreement." Yet the limited use of GTFM' apartment that the License Agreement provided was by s virtue of Mr. Jackson' status as HGI CEO, and was not a "profit" derived from the Apparel' depiction of Plaintiffs' names. s s DRSOF ¶ 75. Nor have Plaintiffs shown that Mr. Jackson actually used the apartment. NRDSOF ¶ 75, Doc 281.

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Murphy Tugboat, 476 F. Supp. at 852-53. Plaintiffs make none of the showings necessary to hold Mr. Jackson individually liable. Instead, they supply a laundry list of unsupported, irrelevant, and inapposite facts that do not support liability against Mr. Jackson. Of the "facts" Plaintiffs cite, many are simply incorrect, i.e., that Mr. Jackson is "100% owner of HGI" and that he signed the License Agreement. (Neal SJ Resp., Doc 278, at 22; RLASOF ¶¶ 184, 178.) Other "facts" lack any evidentiary support at all, such as the allegation that "the Foundation has controlled millions of dollars, 100% at the direction and control of Jackson." (Neal SJ Resp., Doc 278, at 24 (citing inadmissible document that does not support Plaintiffs.)) Still other "facts"-- HGI' corporate status, whether FUBU s "personally" relied on Mr. Jackson' representations, and the employer of Mr. Jackson' s s daughter-- are simply irrelevant to Mr. Jackson' individual liability. Even participation in s negotiations for the License Agreement is completely inapposite to whether Mr. Jackson is personally liable. The License Agreement, and negotiations therefore, were not "inherently unlawful," particularly where HGI possessed or believed in good faith it possessed the rights to use Plaintiffs' names and likenesses. (DSOF ¶¶ 69-70, Doc 196; RDSOF ¶ 15.) This is not a "close case," and does not approach Transgo, Inc. v. Ajac Transmission Parts Corp., cited by Plaintiffs, where a jury found the defendant corporate officer had directly engaged in a civil conspiracy to copy plaintiff' products. 768 F.2d 1001, 1021 (9th Cir. 1985) (finding, inter alia, s defendant had provided plaintiff' confidential pricing structure and customer list to infringing s producer, and advised producer on packaging); see also Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 734 (9th Cir. 1999) (finding liability where corporate officer himself made actionable statement); Murphy Tugboat, 267 F. Supp. at 853-54 (CEO not liable despite direct involvement in improper purchase and knowledge and ratification of improper company practices). Mr. Jackson should be dismissed.3

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Plaintiff Lemon has asserted a defamation claim against Mr. Jackson, but as Section IV shows, infra, this claim is itself legally and factually baseless and should be dismissed.

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B.

Catherine Jackson

Plaintiffs admit that Ms. Jackson was not involved in the facts of this case or the business or ownership of HGI. (Lemon SJ Resp., Doc 282, at 4; Neal SJ Resp., Doc 278, at 23-24.) They imply that she may know something about the Foundation but cite numerous facts that only confirm her non-involvement. (Neal SJ Resp., Doc. 278, at 23-24; Lemon SJ Resp., Doc 282, at 3-4.) Clearly, Ms. Jackson is not personally liable in her own right. Any liability predicated on her marriage to Mannie Jackson and Arizona' community property law is s obviated by Mr. Jackson' own lack of personal liability. Ms. Jackson should be dismissed. s C. The Foundation

Plaintiffs claim the Foundation is a proper party because HGI gave the Foundation revenues earned from the License Agreement. While HGI Defendants do not dispute this fact, Plaintiffs have not cited any legal authority to show this fact makes the Foundation a proper party. (Neal SJ Resp., Doc. 278, at 24; Lemon SJ Resp., Doc 282, at 4-5.) The Foundation should be dismissed. For the reasons stated above and in the HGI Defendants' prior briefs,4 HGI is the only proper party to this action. Mannie & Catherine Jackson and HGIF should be dismissed. II. PLAINTIFFS' LANHAM ACT CLAIM IS MERITLESS. A. Plaintiffs Have Not Alleged Facts to Satisfy the Elements of a Lanham Act Claim. 1. No Admissible Evidence Supports a Finding of Secondary Meaning.

Plaintiffs have not met their burden to show, through specific facts, that their names and player numbers have acquired secondary meaning in the marketplace.5 Their Lanham Act claim may be dismissed on summary judgment as a matter of law. The secondary meaning inquiry focuses on the plaintiff' own, independent use of the s
HGI SJ Mem., Doc 195, at 4; HGI Lemon SJ Resp., Doc 259, at 3-4; HGI Neal SJ Resp., Doc 265, at 3; HGI Sanctions Mem., Doc 216, at 6-9; HGI Sanctions Reply, Doc 270, at 2-7. 5 Neither Plaintiff Lemon nor the Neal Plaintiffs, in the secondary meaning section of their briefs, cite facts related to their likenesses, or even allege that their likenesses possess secondary meaning. (Lemon SJ Resp., Doc 282, at 5-6; Neal SJ Resp., Doc 278, at 2-5.) HGI Defendants thus do not address this issue in this Reply.

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asserted trademark. If the use is intense, sustained, and extensive enough, secondary meaning may be found. The factors to determine whether secondary meaning exists are: 1) whether actual purchasers of the product bearing the claimed trademark associate the trademark with the producer, 2) the degree and manner of advertising under the claimed trademark, 3) the length and manner of use of the claimed trademark, and 4) whether use of the claimed trademark has been exclusive. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1358 (9th Cir. 1985). Expert surveys of purchasers "can provide the most persuasive evidence on secondary meaning," id., while evidence from a "partial source possesses very limited probative value," Filipino Yellow Pages, Inc. v. Asian J. Publs., Inc., 198 F.3d 1143, 1152 (9th Cir. 1999). Plaintiffs have not presented evidence to satisfy the four secondary meaning factors. First, they have cited no evidence that purchasers of the Apparel containing Plaintiffs names believe Plaintiffs are the source of the Apparel. Plaintiff Lemon summarily states this factor is met (Lemon SJ Resp., Doc 282, at 5-6), but such "partial" and conclusory statements will not bar summary judgment. FTC v. Publ' Clearing House, 104 F. 3d 1168, 1171 (9th Cir. 1997). g The Neal Plaintiffs misstate the first factor and cite no evidence that consumers of the Apparel associated the names on the Apparel with Plaintiffs. (Neal SJ Resp., Doc 282, at 4.) Second, Plaintiffs have not advertised or used their names as trademarks in the marketplace. The Neal Plaintiffs cite no evidence that they have advertised or significantly used their "marks," instead-- incorrectly-- relying on the Globetrotters' past use. (Neal SJ Resp., Doc 282, at 4-5.) Meanwhile, Plaintiff Lemon claims generally that he uses his name to promote his ministry and his own basketball team, but he has not provided evidence of advertising or the length and manner of use of his claimed trademark as required by Levi Strauss.6 (Lemon SJ Resp., Doc 56.) Finally, Plaintiffs have not established exclusive use of their names. Plaintiff Lemon' brief s is silent on this issue, although it is undisputed that Lemon' name has been used by the s
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Plaintiff Lemon claims he currently "licenses his name for other endorsement deals." Yet it is undisputed that he has not entered into any licensing deals of any significance for the last seven years, and that he does not license his name on clothes or shoes. (DSOF ¶ 115, Doc 196; LSOCF ¶ 115, Doc 283.)

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Globetrotters for decades. (DSOF ¶¶ 24- 31, 33-38.) The Neal Plaintiffs concede the Globetrotters' extensive use, which directly undercuts the fourth Levi Strauss factor. "Evidence of third party usage . . . is relevant to disprove the existence of secondary meaning." Levi Strauss, 778 F.2d at 1358. Plaintiffs maintain that their numbers possess secondary meaning, but numbers, like names, are considered descriptive. E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1291 (9th Cir. 1992); 555-1212.com v. Comm. House Int' Inc., 157 F.Supp.2d 1084, 1089-90 l, (N.D.Cal. 2001). Thus, Plaintiffs face an uphill battle to show they possess secondary meaning. Japan Telecom, Inc. v. Japan Telecom Am., Inc., 287 F.2d 866, 873 (9th Cir. 2002). Plaintiffs fail to make the requisite showing: Plaintiff Lemon summarily claims his former Globetrotters number possesses secondary meaning without satisfying any of the Levi Strauss factors, and the Neal Plaintiffs can only assert their numbers have secondary meaning "when used in context with the Harlem Globetrotters." (Lemon SJ Resp., Doc 282, at 5-6; Neal SJ Resp., Doc 278, at 5.) These assertions are inadequate to show secondary meaning as a matter of law. Plaintiffs have not cited sufficient evidence that their names and numbers possess secondary meaning, which is fatal to their Lanham Act claim. Summary judgment should be granted to the HGI Defendants. 2. No Admissible Evidence Supports a Likelihood of Consumer Confusion.

Plaintiffs further fail to present relevant and admissible evidence showing consumers were confused by the Apparel. The eight factor test from AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1974), examines 1) strength of the mark; 2) proximity or relatedness of the goods; 3) similarity of the marks; 4) evidence of actual confusion; 5) marketing channels used; 6) likely degree of purchaser care; 7) defendant' intent in selecting the mark; and 8) likelihood s of expansion of the product line. Id. at 348-49. "Mere possibility that a consumer may be misled" by Defendants' use of Plaintiffs' names "is not enough to establish a cause of action for unfair competition." Newton v. Thomason, 22 F.3d 1455, 1461-62 (9th Cir. 1994).

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Neither Plaintiff Lemon nor the Neal Plaintiffs have shown their marks are strong, much less have recognition among the segment of the population to which the Apparel was directed, the relevant first factor inquiry. Downing v. Abercrombie & Fitch, 265 F.3d 994, 1007 (9th Cir. 2001). Plaintiff Lemon summarily claims he is the most famous Globetrotter and is wellknown by virtue of his induction into the basketball Hall of Fame. (Lemon SJ Resp., Doc 282, at 7.) The Neal Plaintiffs claim only that they have strong marks because their names are "fanciful." (Neal SJ Resp., Doc 278, at 7.) Yet even if true, these claims do not show Plaintiffs' names are known among the segment of the population that purchased the Apparel, and the first factor favors HGI. Plaintiffs do not establish the second and third factors because they do not use their names on or produce merchandise like the Apparel.7 Sleekcraft, 599 F.2d at 350-51. (DSOF ¶¶ 111, 113, 115, 132, 134, 137, 143, Doc 196; RDSOF ¶¶ 111, 113, 115, 134, 143.) In other words, Plaintiffs have no goods or marks to compare to the Apparel. Furthermore, the Globetrotters made extensive use of Plaintiffs' names and numbers over the years for promotional and commercial purposes. This negates any source-identifying function Plaintiffs' names have when used in tandem with the Globetrotters' marks. Cairns v. Franklin Mint Co., 107 F. Supp. 2d 1214, 1220-21 (C.D.Cal. 2000), aff' 292 F.3d 1139 (9th Cir. 2002). d Significantly, Plaintiffs have not produced any evidence of actual confusion of the Apparel, the fourth factor. Plaintiff Lemon muses, without support, that because the public is "very aware" that celebrities make profits from endorsing products like clothing, "actual confusion is certain." (Lemon SJ Resp., Doc 282, at 7.) Such conclusory statements are insufficient on summary judgment, and are a far cry from the surveys, affidavits, and expert testimony that normally support a showing of actual confusion. Levi Strauss, 778 F.2d at 1360; Waits v. Frito-Lay, 978 F.2d 1093, 1111 (9th Cir. 1992); Kournikova v. Gen. Media Communications, Inc., 278 F. Supp. 2d 1111, 1124-25 (C.D.Cal. 2003). The Neal Plaintiffs

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Plaintiff Lemon claims he creates "sports and basketball products," but admits he does not produce clothes or shoes. (DSOF ¶ 115, Doc 196; LSOCF ¶ 115, Doc 283.)

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brush off the necessity of showing actual confusion with an inapplicable New York district court case, but nonetheless cite hearsay statements that unidentified persons were confused by the Apparel. Even if these statements were admissible-- and they are not-- they would still be inadequate. To show actual confusion, Plaintiffs "should have presented evidence that confusion by consumers impairs [their] reputation and career." Newton, 22 F.3d at 1462 (rejecting plaintiff' Lanham Act claim when he asserted people he spoke with were confused s about his endorsement of a TV program that used his name). Plaintiffs have not done so, and this factor weighs against them. Plaintiff Lemon does not address marketing channels used, likely degree of purchaser care, and likelihood of expansion of the product line, the fifth, sixth, and eighth factors. The Neal Plaintiffs try, but do not get them right. Marketing channels used does not evaluate the legitimacy of the marketing, as the Neal Plaintiffs seem to think (Neal SJ Resp., Doc 278, at 9), but whether the plaintiff' and defendant' products utilize the same marketing channels, Cairns, s s 107 F. Supp. 2d at 1220. Since Plaintiffs have submitted no evidence of marketing channels, this factor weighs in favor of HGI Defendants. Plaintiffs attribute the same "legitimacy" test to factor six, likely degree of purchaser care, but again get it wrong. This factor examines whether consumers purchase the goods impulsively, a determination that would normally be made by a survey, Kournikova, 278 F. Supp. 2d at 1126, or expert opinion, Sleekcraft, 599 F.2d at 353. Plaintiffs have not presented any such evidence, and factor six also favors the HGI Defendants. Plaintiffs also cannot show that the line of Apparel will be expanded-- factor eight-- since it is undisputed that the License Agreement has terminated. (DSOF ¶ 90, Doc 196.) Plaintiffs fail factors five, six, and eight. Plaintiffs also lose on the seventh factor, Defendants' intent. Plaintiff Lemon claims it can be satisfied just upon a showing that the Defendants intended to profit from the Apparel. (Lemon SJ Resp., Doc 282, at 7.) Yet the test is whether Defendants intended to profit "by confusing consumers." Newton, 22 F.3d at 1463 (emphasis in original). No Plaintiff has

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presented such evidence, nor could they, since Defendants possessed, or believed in good faith that they possessed, the right to used Plaintiffs' information.8 (DSOF ¶¶ 15, 66, 69, 70, Doc 196; RDOSF ¶ 15.) This factor favors HGI. Plaintiffs have not met their burden to show consumers were confused about whether Plaintiffs endorsed the Apparel. Plaintiffs' Lanham Act claim fails as a matter of law, and summary judgment should be rendered to the HGI Defendants. B. Plaintiffs'Claims are Barred by their Player Contracts.

No Plaintiff disputes that he signed player contracts with the Globetrotters or the language of those contracts. (DSOF ¶¶ 16-22, Doc 196; RDSOF ¶¶ 16-22.) Plaintiffs instead offer various unavailing legal theories to escape their contractual obligations. Thus, even if Plaintiffs could show both secondary meaning in their names and a likelihood of consumer confusion, their Lanham Act claim would still be estopped because Plaintiffs signed contracts permitting the Globetrotters to use and license their names and likenesses indefinitely. (HGI SJ Mem., Doc 195, at 11-14.) Plaintiff Lemon claims estoppel is inapposite because the cases cited do not address the precise facts of this case. (Lemon SJ Resp., Doc 282, at 8.) The cases cited establish that a prior contract or agreement can estop a claim of trademark infringement. (HGI SJ Mem., Doc 195, at 11-14.) Estoppel is a common equitable defense and can be used in a variety of ways. E.g., 5 McCarthy on Trademarks and Unfair Competition § 32.106 (hereinafter, "McCarthy") ("Estoppel can also prevent the trademark owner from withdrawing or terminating a consent."). Plaintiff Lemon admits that he signed player contracts, but denies they give the Globetrotters the right to license Plaintiff' name and likeness. (Lemon SJ Resp., Doc 282, at 8.) The plain s language of the contracts authorized use of Plaintiff' name and likeness. (DSOF ¶ 18, Doc s 196.) Plaintiff Lemon does not deny prejudice to HGI exists to support estoppel.

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The Neal Plaintiffs claim that Defendants' "reckless disregard of Plaintiffs' rights" constitutes constructive intent. Plaintiffs cite no legal authority that supports this claim.

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The Neal Plaintiffs raise several additional legal and factual theories that the contracts they admit they signed are invalid. (Neal SJ Resp., Doc 178, at 14-19.) The first three theories are not supported by any legal argument-- or in the case of Plaintiffs' second theory, fact-- and cannot overcome the plain language of the player contracts.9 (DSOF ¶¶ 16-22.) Plaintiffs' fourth theory, that a 1983 collective bargaining agreement ("CBA") superseded Plaintiffs' individual contracts, is without merit. The undisputed evidence shows that the union that negotiated the CBA no longer exists, and that the CBA is consequently invalid and immaterial to this litigation. (DASOF ¶¶ 8, 18-19, Doc 267; RNASOF ¶ 2.) Even if the CBA were somehow valid, it is still immaterial because it incorporated the publicity provision of the players' contracts-- at that time located in ¶ 12(a)-- and thus supports the individual contracts' grant of publicity rights to the Globetrotters. (RNASOF ¶ 2.) The CBA' merchandising s provision only applied to the use of Plaintiffs'names while they were players, thus preserving the individual contracts' grant of rights to Plaintiffs' information after their employment ended. (RNASOF ¶ 2.) The 1983 CBA is immaterial. The Neal Plaintiffs' fifth theory, that HGI abandoned the marks, is a clumsy adaptation of the HGI Defendants' "naked licensing" argument.10 (HGI SJ Mem., Doc 195, at 11-14.) Naked licensing is an equitable defense asserted by a licensee (in this case, HGI) against the licensor (the Plaintiffs). Barcamerica Int' USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 595-96 l (9th Cir. 2002); Miller v. Glenn Miller Productions, 318 F.Supp.2d 923, 945 (C.D.Ca. 2004). The Plaintiffs, as licensors, were obligated to police HGI' use of their names and likenesses to s ensure quality control of their "marks." Plaintiffs conceded they did not do this, even while being aware that the Globetrotters used their names and likenesses after they left the team.
HGI Defendants disposed of Plaintiffs' first and second theories, that HGI or its predecessors never acquired Plaintiffs' player contracts, in their Response to the Neal Plaintiffs' Motion for Summary Judgment, Doc 265, at 7-8, 11. The Neal Plaintiffs' third theory, that "HGI Has Unclean Hands," is legally unsupported and presupposes the contacts are unenforceable. 10 If Plaintiffs had trademarks in their names, the grant of use to HGI without quality control would constitute a naked license negating the underlying trademark rights. Plaintiffs do not dispute this argument, which should therefore be deemed admitted.
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(DSOF ¶¶ 39, 40, 42, 44-48, Doc 196.) Plaintiffs' current attempts to disavow their player contracts and assert trademark rights must be estopped. The Neal Plaintiffs' sixth and seventh theories-- unconscionability and failure of consideration-- are equally without merit. (Neal SJ Resp., Doc 278, at 18-19.) Plaintiffs have not made the requisite factual showing that their player contracts were unconscionable at the time they were made, taking into account their "setting, purpose, and effect." Restatement (Second) of Contracts, § 208, Comment A (2005). Plaintiffs fail to show for any Plaintiff that the salary and other benefits provided in the contracts were insufficient. (DASOF ¶ 29, Doc 267.) Plaintiffs do not present evidence that their contracts were unconscionable or fail for inadequate consideration. (See also HGI Neal SJ Resp., Doc 265, at 8-10.) Finally, the Neal Plaintiffs allege the Court may consider extrinsic evidence related to their player contracts. Where, as here, the terms of an agreement are clear, the construction of the contract is a question of law for the court and extrinsic evidence may not be used to ascertain its meaning. Leikvold v. Valley View Comm. Hosp., 141 Ariz. 544, 548, 688 P.2d 170, 174 (1984). Even if it was appropriate to consider extrinsic evidence, Plaintiffs have not stated what evidence they want to Court to consider. Plaintiffs allege they understood at the time the contracts were signed that HGI could not sublicense Plaintiffs' information, but cite no facts that evidence this understanding. (See also HGI Neal SJ Resp., Doc 265, at 15.) Plaintiffs signed players contracts granting the Globetrotters a perpetual right to use and license Plaintiffs' names. Plaintiffs have offered no facts or law in dispute that undermine HGI' estoppel defense. Summary judgment should be granted to the HGI Defendants. s C. Plaintiffs'Claims are Barred by Laches.

As HGI' initial summary judgment brief explained, "a party asserting laches must show s that it suffered prejudice as a result of the plaintiff' unreasonable delay in filing suit." Jarrow s Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir. 2002) (finding laches in seven-year delay). Because the Globetrotters have used Plaintiffs' names and likenesses for

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decades without legal challenge from Plaintiffs, their belated assertion of trademark rights is barred by laches. (HGI SJ Mem., Doc 195, at 14-16.) Plaintiffs do not contest that their delay in filing suit was long, or that HGI suffered prejudice because of Plaintiffs' delay. Rather, they claim they did not view the Globetrotters' conduct actionable until now. Yet both Plaintiff Lemon and the Neal Plaintiffs acknowledge the Globetrotters' past and current11 uses of their names. (Lemon SJ Resp., Doc 282, at 9; Neal SJ Resp., Doc 278, at 20.) It is undisputed that the range of uses have included television shows to programs to lunchboxes to trading cards to Plaintiffs' own basketball jerseys. (DSOF ¶¶ 24-31, 33-37, Doc 196.) The Apparel easily fits into this range: if Plaintiffs' names and caricatures could be used in a nationally-televised cartoon series and various spin-off merchandise (id. ¶¶ 30-31), it is not a leap to manufacture shirts using their nicknames (along with the Globetrotters' trademarks).12 Plaintiffs cite no law to the contrary. (Lemon SJ Resp., Doc 282, at 9; Neal SJ Resp. at 20.) It is also undisputed that Plaintiffs either knew of the Globetrotters' use, or did not sufficiently monitor the Globetrotters' use. (DSOF ¶¶ 38-48, Doc 196.) Plaintiffs have had years to contest their contracts. Only now, when Globetrotters witnesses are unavailable or deceased (DSOF ¶ 62, Doc 196), do Plaintiffs attempt to avoid the contracts. This attempt should be rejected. D. Plaintiffs Have Suffered No Damages.

It is undisputed that individual Plaintiffs have no actual damages, such as lost opportunity
11

Plaintiff Lemon claims that HGI "has not been involved in utilizing Plaintiff' name and likeness," but this claim is s unsupported. (Lemon SJ Resp., Doc 282, at 9.) It is undisputed that HGI has used Plaintiff' name, inter alia, in programs s and on television shows. (DSOF ¶¶ 33-36, Doc 196.) Also, Lemon did not dispute DSOF ¶ 38: that "Plaintiff Lemon is aware the Globetrotters have continued to use his likeness, picture, and other identifying information since he left the team." (LSOCF ¶ 38, Doc 283.) 12 The Neal Plaintiffs claim they were paid for the past use of their information and that this somehow bars Defendants' laches defense. (Neal SJ Resp., Doc 278, at 20.) HGI Defendants do not dispute that Plaintiffs were occasionally paid for their participation in appearances and other commercial ventures while they were players. (RDSOF ¶ 23). However, whatever arrangements Plaintiffs had at they time they were players is immaterial to HGI' current legal right to use s Plaintiffs information as provided in their player contracts, which do not and never have stated that extra compensation is owed for these purposes. (DSOF ¶¶ 16-22, Doc 196.) (The 1985 Rivers letter that Plaintiffs cite to the contrary was never executed, RNASOF ¶ 47.) HGI' laches defense is also unaffected, since Plaintiffs were not always compensated for the s Globetrotters'use of their names and likenesses and could not have developed a reasonable expectation that they would be paid extra for all future uses of their information.

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or corrective advertising costs.13 Instead, Plaintiffs seek only HGI' profits.14 (DSOF ¶¶ 96.) s "Willful infringement" is essential to granting disgorgement of HGI' profits. Plaintiffs s cannot cite a single case where a plaintiff received defendant' profits without a showing of s willfulness. Contrary to the Neal Plaintiffs' claims (Neal SJ Resp., Doc 278, at 12), the district court in Lindy Pen determined on the briefs that "an accounting of profits was inappropriate because [the defendant' infringement was innocent." Lindy Pen Co., Inc. v. Bic Pen Corp., s] 982 F.2d 1400, 1404 (9th Cir. 1993). The Neal Plaintiffs' Nike case also proves nothing, as it was decided on summary judgment. Finally, the case the Neal Plaintiffs cite simply as "E&J Gallo" is a legal phantom. (Neal SJ Resp., Doc 278, at 12.) The E&J Gallo case Plaintiffs cite earlier in their brief, at 967 F.2d 1280, has nothing to do with a foreign wine producer and willful infringement as Plaintiffs claim. Even if willfulness is just one factor a court considers in determining whether to award profits, Plaintiffs have not shown the other factors are met: the Apparel' adverse effects on the Plaintiffs are nil (DSOF ¶¶ 103-107, Doc 196; RDSOF ¶¶ 103s 104), Plaintiffs' marks-- if any-- are weak (Section II.A., supra), and there is no evidence of actual confusion15 (Section II.A.ii, supra). Lindy Pen, 982 F.2d at 1406. Because Plaintiffs cannot show the HGI Defendants intentionally "attempt[ed] to gain the value of an established name of another," they cannot obtain Defendants' profits.16 Plaintiff Lemon, but not the Neal Plaintiffs, attempts to make a causal connection between HGI' profits and the allegedly infringing conduct. (HGI SJ Mem., Doc 195, at 18-19; s Lemon SJ Resp., Doc 282, at 11-13.) However, Lemon cannot show that Defendants' profits "are attributable to the infringing conduct," Lindy Pen, 982 F.2d at 1408, and, therefore that he
Plaintiff Lemon states that he has actual damages. In fact-- and confusingly-- he only uses this term to refer to Defendants' profits. (Lemon SJ Resp., Doc 282, at 10; see also RDSOF ¶¶ 103-104.) 14 Plaintiffs do not delineate any profits earned by the Foundation, Mannie Jackson, or Catherine Jackson. 15 Because Plaintiffs claim HGI' profits on an unjust enrichment theory, it is particularly important that they show actual s confusion. George Basch Co., Inc. v. Blue Coral, Inc., 968 F.2d 1532, 1538 (2d Cir. 1992). 16 Plaintiff Lemon attempts to show willfulness through a series of immaterial and unsupported factual statements and hyperbole. (Lemon SJ Resp., Doc 282, at 10-11.) While HGI does not dispute it entered into the License Agreement, that it did not give GTFM Plaintiff' contract specifically, and that it mailed Lemon a check, there is no evidence that the actions s were deliberate, willful, or an attempt to "conceal" HGI' actions, as Plaintiff claims. s
13

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is entitled to disgorgement.17 No Plaintiff disputed DSOF ¶ 155: "Plaintiffs have not produced evidence that the Apparel would not have sold but for their information being on it, i.e. that consumers bought the Apparel only because of their information, and not because of the Globetrotters or FUBU marks." (NRDSOF ¶ 155, Doc 281; LSOCF ¶ 155, Doc 283.) While this should settle the matter, Lemon alleges that he has "set forth a plethora of evidence that shows consumers likely purchased the clothing because it bore his name and likeness." (Neal SJ Resp., Doc 282, at 12.) Lemon gets the test wrong: he can only get profits that are directly attributable to the infringing conduct, not that are likely attributable. Neither the "fact" that two individuals deposed in this case named Plaintiff as a notable past Globetrotter, nor Lemon' s unsupported claim that "his" clothing sold the best, satisfies this test. Plaintiffs cannot make the requisite but/for showing to obtain HGI' profits.18 s Plaintiffs have not alleged sufficient facts to support a Lanham Act claim, to overcome HGI' defenses, or to establish damages. Summary judgment should be granted to the HGI s Defendants. III. PLAINTIFFS' COMMON LAW CLAIMS ARE DEFICIEINT. A. Right of Publicity.

Plaintiffs have failed to show they could recover under a right of publicity claim, if one exists in Arizona.19 The Neal Plaintiffs cite no facts in their right of publicity section, and have thus failed
Plaintiff Lemon additionally argues that he accurately stated profits in his expert report, though he simultaneously complains he could not get sufficient sales information from HGI and GTFM. (Lemon SJ Resp., Doc 282, at 11-12.) This Court has previously found Plaintiffs requested damages-related information too late, Order, 8/3/05, Doc 143; Order, 8/18/05, Doc. 148; any resulting deficiencies in Plaintiffs' expert report are their fault, not Defendants' HGI agrees with GTFM that . the report does not establish an adequate basis for damages and has joined GTFM' motion to strike the report. (HGI Jndr., s Doc 242.) 18 Neither Plaintiff Lemon nor the Neal Plaintiffs defend their claims for treble damages or injunctive relief, and only Plaintiff Lemon defends his claim for attorneys' fees and costs. His defense relies on the erroneous assumption that Defendants willfully infringed Plaintiffs' mark, a prerequisite to receiving attorneys' fees, Earthquake Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1216 (9th Cir. 2003), and must be dismissed. 19 The Neal Plaintiffs assert that Arizona accepted Prosser' four-part classification of the tort, including a right of publicity, s in Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781 (1989). Yet while the Godbehere court recited Prosser, it did not explicitly accept the four-part classification and only recognized a false light invasion of privacy claim in Arizona.
17

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their burden on summary judgment to cite specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); (Neal SJ Resp., Doc 178, at 13.) The Neal Plaintiffs also do not discuss the elements of a right of publicity claim or show they are satisfied. (Id.) Plaintiff Lemon sets forth facts immaterial to a right of publicity claim. Plaintiff cites general sales figures to support an inference that the Globetrotters benefited from the use of his name on the Apparel, the second right of publicity element as stated in Pooley v. Nat' Hole-inl One Assoc., 89 F. Supp. 2d 1108, 1111 (D.Ariz. 2000). (Lemon SJ Resp., Doc 282, at 13.) These figures do not show the use of Plaintiff' information benefited HGI; to the contrary, s Lemon has no evidence that consumers bought the Apparel bearing Lemon' name because it s bore his name. (DSOF ¶¶ 96, 155, Doc 196.) Lemon summarily claims lack of consent, the third Pooley element, but admits he signed a player contract (DSOF ¶ 18, Doc 196). The contract granted the Globetrotters the indefinite right to use Plaintiff' name and likeness. This s defeats the third element, as well as confirms the affirmative defense of license and estoppel to HGI. 20 Miller, 318 F. Supp. 2d at 945-46. Finally, Plaintiff Lemon argues that he has been injured, the fourth Pooley element, but his supposed "injury" is just Defendants' profits.21 Disgorgement of profits is not an "injury" for a right of publicity claim. See Solano v. Playgirl, Inc., 292 F.2d 1078, 1090 (9th Cir. 2002) (defining measure of damage on right of publicity claim as fair market value of the use of the alleged trademark). Plaintiffs have failed to present evidence to support their right of publicity claim, which should be dismissed and HGI Defendants' motion for summary judgment granted. B. False Light Invasion of Privacy.

Plaintiffs fail to cite specific facts supporting a false light invasion of privacy claim. The Neal Plaintiffs offer only conclusory, unsupported statements of fact (Neal SJ Resp., Doc
20

Lemon did not respond to HGI' argument that his failure to object to HGI' long use of his information constituted s s consent, which defeats the lack of consent element and gives rise to laches. (HGI SJ Mem., Doc 195, at 21.) 21 Plaintiff Lemon additionally claims "Defendants effectively took away Plaintiff' right to choose to endorse another s product" (Lemon SJ Resp., Doc 282, at 14) but he has presented no evidence of lost opportunity. (DSOF ¶ 103, Doc 196; RDSOF ¶ 103.)

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278, at 21) that are insufficient to respond to a motion for summary judgment. Fed. R. Civ. P. 56(e); Orr v. Bank of Am., 285 F.3d 764, 775 (9th Cir. 2002) ("Judges need not paw over the files without assistance from the parties.") (citation omitted); FTC v. Publ' Clearing House, g 104 F. 3d 1168, 1171 (9th Cir. 1997). The Lemon brief is the same, except it cites the immaterial fact that Plaintiff Lemon is an evangelical minister. (Lemon SJ Resp., Doc 282, at 15.) Whatever Plaintiff' efforts to meet the first prong of a false light claim-- the false light in s which he was placed would be highly offensive to a reasonable person, 22 Godbehere, 162 Ariz. at 227, 783 P.2d at 783-- his overall claim fails because he has not addressed the second "quite stringent" element: that the defendant published with knowledge of the falsity or reckless disregard for the truth. Id. at 340, 783 P.2d at 786. Plaintiffs have not cited specific facts to support their false light claim, which must be dismissed. C. Unjust Enrichment

HGI Defendants set out the five elements of unjust enrichment in their initial brief: 1) an enrichment; 2) an impoverishment; 3) a connection between the enrichment and impoverishment; 4) absence of justification for the enrichment and impoverishment; and 5) absence of a remedy at law. Stapley v. Am. Bathtub Liners, Inc., 162 Ariz. 564, 568, 785 P.2d 84, 88 (Ct. App. 1984). Plaintiff Lemon steadfastly refused to address the elements of unjust enrichment, instead focusing on quantum meruit. Quantum meruit is the measure of damages for an unjust enrichment claim. (Lemon SJ Resp., Doc 282, at 15-16.) The Neal Plaintiffs dance around the unjust enrichment elements but do not allege facts to show they are satisfied. They admit they cannot show the Apparel sold because their information was on it (DSOF ¶¶ 96, 155, Doc 196); thus, they cannot show the first and third unjust enrichment elements. They also cannot show an impoverishment; their immaterial allegation that they received compensation as players for some endorsements and that they

Plaintiffs have evidently abandoned their claim that the overseas manufacture of the Apparel is highly offensive. (HGI SJ Mem., Doc 195, at 22.)

22

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would have been paid for the Apparel "under their course of business with the predecessors of HGI" does not prove Plaintiffs would be entitled to compensation now. In any case, Plaintiffs were compensated (DSOF ¶¶ 86-87, Doc 196), and have not suffered any economic damages (id. ¶¶ 96, 103-104; RDSOF ¶¶ 103-04). Plaintiffs also fail to make any showing on the fifth element, absence of a remedy at law, and cannot since their obvious remedy would have been to register their alleged trademarks. Plaintiffs' unjust enrichment claims should be dismissed. IV. PLAINTIFF LEMON' DEFAMATION CLAIM IS DEFICIENT. S Plaintiff Lemon does not address HGI' argument that he has failed to state a claim s because his complaint does not identify any allegedly defamatory statements. (HGI SJ Mem., Doc 195, at 24 (citing Lemon Compl., Doc 76, at 11).) Contrary to the notice pleading rule (Fed. R. Civ. P. 8) Lemon seeks to add an entirely new basis for his defamation claim: statements Mannie Jackson supposedly made to Ben Green for the book, Spinning the Globe. It is undisputed that in deposition, Plaintiff Lemon cited only an Arizona Republic article as the basis for his defamation claim, and said Mr. Jackson had made no other public statements that he believed defamed him. (DSOF ¶¶ 126-127.) Looking to the Spinning the Globe pages Lemon cites, there are no quotes about Plaintiff Lemon attributed to Mr. Jackson-- good, bad, or otherwise. (RLASOF ¶¶ 173-74.) While there are unflattering comments about Plaintiff Lemon in those pages, it appears most came from Plaintiff Lemon' fellow players, not Mr. Jackson. s Plaintiff' newfound defamation claim must be dismissed. s Mr. Jackson' comments in The Arizona Republic article (DSOF ¶ 125, Doc 196) did not s bring Plaintiff Lemon into disrepute, contempt, or ridicule, or impeach Plaintiff Lemon' s honesty, integrity, virtue, or reputation. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 786 (1989). Lemon has also not shown the statements were false, a necessary element when the plaintiff is a public figure (and Plaintiff Lemon assuredly thinks he is). Turner, 174 Ariz. 201, 205 & n.8, 848 P.2d 286, 292 & n.8 (1993) (citing Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990)). Rather, Lemon claims, without citation, that he did not

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start his own basketball team because he "wanted to be the show." Yet it is undisputed that in his deposition, Mr. Lemon said he only took offense at the article because it implied he was competing with the Globetrotters when he was not. (DSOF ¶ 126, Doc 196). Since Mr. Jackson did not even make this comment (Id. ¶ 125-26), his defamation claim based o the Arizona n Republic article must be dismissed, with sanctions. CONCLUSION The HGI Defendants respectfully request that the Court grant their motion for summary judgment against Plaintiff Lemon and the Neal Plaintiffs on all claims. RESPECTFULLY SUBMITTE D this 19th day of December, 2005. By: s/ Edward R. Garvey____________ Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int' Inc., Harlem Globetrotters Int' Foundation, l, l and Mannie L. & Catherine Jackson
CERTIFICATE OF SERVICE 1. I hereby certify that on December 19, 2005, a true and correct copy of the attached document was electronically transmitted to the Clerk' Office using the CM/ECF System for filing and s transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Edward R. Garvey ­ [email protected] Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected] Joel Louis Herz - [email protected] Ira S. Sacks ­ [email protected] Anders Rosenquist, Jr. ­ [email protected] Clay Townsend ­ [email protected]

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Robert W. Goldwater, III ­ [email protected] 2. I hereby certify that on December 19, 2005, 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 Brandon Scott Peters Goldwater Law Firm 15333 N Pima Rd Ste 225 Scottsdale, AZ 85260

s/ Melody Tolliver

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