Free Reply - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12

Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 (602) 916-5414 [email protected] 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 TO PLAINTIFF LEMON' S ADDITIONAL STATEMENT OF FACTS

13 MEADOWLARK LEMON, et al., 14 15

Plaintiffs, vs.

16 HARLEM GLOBETROTTERS 17 18 19

INTERNATIONAL, INC., et al.; Defendants.

HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona 21 corporation,
20 22 23

Counterclaimant, vs.

24 MEADOWLARK LEMON, a married man, 25 26 Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007 Document 348 Filed 12/19/2005 Page 1 of 16

Counterdefendant.

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

Pursuant to District Court of Arizona LRCiv 56.1(a), Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Inc., and Mannie & Catherine Jackson (collectively, "HGI Defendants") submit the following Reply to Plaintiff Lemon' s Additional Statement of Facts (LASOF, Doc 283), submitted in response to the HGI Defendants' motion for summary judgment. The HGI Defendants reply separately to the Plaintiff Lemon' responses to HGI' statement of facts, which Lemon filed with his additional s s statement of facts in Docket 283. Most of the "additional" facts submitted by Plaintiff Lemon are direct copies of proposed facts these Plaintiffs filed in support of their own motion for summary judgment (LSOF, Doc 206), to which the HGI Defendants have already responded (RLSOF, Doc 261). The HGI Defendants again respond to these prior facts below. In this Reply, "HGI" or "the Globetrotters" refers to Harlem Globetrotters International, Inc. and "GTFM" and "FUBU" refer to GGTFM, LLC. "License Agreement" refers to the June 1, 2002 license agreement entered into by HGI and GTFM, and "Apparel" refers to apparel produced in accordance with that agreement. GENERAL OBJECTIONS HGI Defendants object to some exhibits Plaintiff Lemon submitted with his Additional statement of facts (LASOF and exhibits, Doc 283) for various reasons stated below. Defendants object to Plaintiff' Exhibits C, G, P, Q, W, and EE,1 a variety of documents s that are unauthenticated by Plaintiff or elsewhere in the record, and any facts relying on these exhibits. Fed. R. Civ. P. 56(a), (e); LRCiv 56(1)(a). "It is well settled that unauthenticated
1

These exhibits are summarized as follows:

C: Lemon 1993 independent contractor agreement G: Foundation cash journal P: Article regarding Globetrotters sale Q: Hangtags (2) W: Rosenquist letter EE: Foundation tax return page (LASOF, Doc 206.)

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 -2-

Filed 12/19/2005

Page 2 of 16

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

documents cannot be considered on a motion for summary judgment. . . . This court has consistently held that documents which have not had a proper foundation to authenticate them cannot support a motion for summary judgment." Canada v. Blain' Helicopters, Inc., 831 F.2d s 920, 925 (9th Cir. 1987) (internal quotation marks and citations omitted). Plaintiffs, as proponents of the evidence, have not met their burden to show these documents should be admitted. Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir. 1981) ("it is up to the proponent of the evidence to lay the proper evidentiary foundation") (excluding evidence), cert denied, 456 U.S. 927 (1982). HGI Defendants also object to Exhibit M, the affidavit of Edward Mutum, which they have previously moved to strike since this witness was not disclosed in discovery or through Plaintiff' Fed. R. Evid. 26 initial disclosures. (Mot. to Strike, Doc 268.) HGI Defendants s renew that motion as to Exhibit M. HGI Defendants object to Exhibits N (Weisfeld deposition) and FF (Tinberg expert report), to the extent they are "marked up," apparently by Plaintiff' counsel, and are not true s and correct copies of the Weisfeld deposition and Tinberg expert report. Fed. R. Evid. 1003. Finally, Defendants object to LASOF ¶¶ 40, 41, 44 and 45 as completely unsupported by any citation to the record at all, and therefore in violation of Fed. R. Civ. P. 56 and LRCiv 56(1)(a). These purported facts should be disregarded.
Notwithstanding and without waiving these objections, the HGI Defendants respond to the Neal Plaintiffs'statement of facts as follows.

RESPONSES TO PLAINTIFF LEMON' STATEMENT OF FACTS S The following facts submitted by Plaintiff are undisputed: LASOF ¶¶ 139, 142, 148, 150, 151-154, 117, 118, 165, 166, 168, 169, 182, 183, 186, 187, 190, 198 and 199. 136. Plaintiff has submitted evidence of his reputation and notoriety. (See Exhibit "H"

at p. 15, 138, 187; Exhibit "O" at p. 121). RLASOF 136: The record cited says nothing about Plaintiff Lemon' reputation and s notoriety. Exhibit H is Mr. Jackson' opinion testimony of Lemon, and Exhibit O is s
Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007 Document 348 -3Filed 12/19/2005 Page 3 of 16

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

Larry Blenden' statement, in response to a deposition question, that one of the "old big s names" for the Globetrotters is Lemon. 137. Plaintiff has submitted evidence on whether purchasers of the FUBU/HGI Apparel

were likely to be confused as to the source or sponsorship of the merchandise. (See Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121). Plaintiff further asserts that he has been inducted into the Basketball Hall of Fame. (See Exhibit "I" at ¶ 2, 6). RLASOF 137: The first sentence is unsupported by the record citation. Neither Mr. Jackson' nor Mr. Blenden' depositions discuss evidence of consumer confusion. s s 138. Plaintiff has established that the Alleged Trademarks are protectable under the

Lanham Act by submitting evidence that consumers likely bought GTFM/HGI Apparel because it contained his name and likeness. (See Exhibit "I" at ¶ 2, 3, 6; Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121). RLASOF 138: None of the citations provided "establish," or even discuss, whether consumers purchased the Apparel because it contained Plaintiff' name and likeness. s HGI Defendants also object to ¶ 3 of Mr. Lemon' affidavit (Plaintiff' Exhibit I") as a s s self-serving, conclusory statement insufficient to respond to a motion for summary judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. Publ' n, g Clearing House, 104 F. 3d 1168, 1171 (9th Cir. 1997). 140. People associate # 36 with Plaintiff. (See Exhibit "I" at ¶ 3).

RLASOF 140: Exhibit 1 lacks foundation and contains hearsay, and is a conclusory, self-serving statement insufficient to support a motion for summary judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. Publ' Clearing House, 104 F. 3d n, g 1168, 1171 (9th Cir. 1997). 141. The clothing bearing Plaintiff' name, likeness, and player number sold very well, s

and was the highest selling of all players. (See Exhibit "H" at p. 138). RLASOF 141: The transcript (Exhibit A) indicates Mr. Jackson actually testified as follows: Q: So there' ­ the new guys were selling in the clothing stores just as s

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 -4-

Filed 12/19/2005

Page 4 of 16

1 2 3 4 5 6 7 8 9 10 11 12 13

good as guys like Meadowlark Lemon, Curly Neal, Marques Haynes? A: I think Marques Haynes and Curly Neal ­ Meadowlark Lemons [sic] sold very well. They sold well. That was the highest group of the ­ highest ratio of the group. (Jackson Dep. at 138, .) 144. The best-known Globetrotters ever are Meadowlark Lemon and Marques Haynes.

(See Exhibit "H" at p. 187). RLASOF 144: Undisputed to the extent Exhibit H (Jackson transcript) represents only Mr. Jackson' opinion. s 145. Meadowlark Lemon is the single most recognized Harlem Globetrotter. (See

Exhibit "H" at p. 255-256). RLASOF 145: Undisputed to the extent Exhibit H (Jackson transcript) represents only Mr. Jackson' opinion. s 146. Plaintiff has submitted evidence that (i) his names, number, image and likeness

has achieved secondary meaning or (ii) acts as a source identifier. (See Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121). Plaintiff has submitted evidence of his celebrity status and
14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007 Document 348 -5Filed 12/19/2005 Page 5 of 16

notoriety, which is proof that his name, number and likeness have achieved secondary meaning. (Id.). RLASOF 146: The citations to Mr. Jackson' and Mr. Blenden' depositions do not s s show that Plaintiff' name, image, and likeness have achieved secondary meaning or act s as a source identifier, which are legal conclusions in any case. Plaintiff Lemon has not submitted evidence of his asserted celebrity status and notoriety. 147. Plaintiff currently licenses his name, jersey number, likeness and/or image. (See

Exhibit "I" at ¶ 12). RLASOF 147: The citation to Mr. Lemon' affidavit as a conclusory, self-serving s statement insufficient to support a motion for summary judgment. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. Publ' Clearing House, 104 F. 3d 1168, 1171 n, g (9th Cir. 1997). Mr. Lemon' deposition testimony was that he has not entered into a s license agreement of any significance in the last seven years and was not looking for any,

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

and he is not a party to a license agreement for clothes or shoes. (Lemon Dep. at 150-51, Doc 199.) 149. Exhibit "J"). RLASOF 149: HGI Defendants do not dispute that Mr. Vaughn may have thought, without reference to Globetrotters records or personal knowledge, that Plaintiff Lemon is the only Globetrotter to have worn the number thirty-six. However, company records show that at least three recent players have worn the number 36, including Donnie Boyce in 2001, William Pippen in 2004, and Gordon Malone in 2005. (Syracuse Aff., ¶ 9, Doc 208). 151. The clothing line had a projected sales volume of twenty million dollars. (See Plaintiff is the only Globetrotter player to have worn number thirty-six. (See

Daymond Aurum Deposition Transcript, attached as Exhibit "U" at p. 40-41). RLASOF 151: Disputed as unsupported by the record citation, but immaterial. As the record citation indicates, Mr. Aurum testified, "I don' know the projected sales volume." t 155. Mannie Jackson stated that the HGI/GTFM licensing agreement was a "100

million dollar deal." (See ESPN article, attached as Exhibit "V"). RLASOF 155: Dispute that Mr. Jackson was referring to the FUBU agreement with the phrase "100 million dollar deal," but immaterial. The record citation indicates Mr. Jackson' testimony that Harlem Globetrotters International, Inc. is a "100 million dollar s business." 156. Plaintiff' continued promotion of himself in the basketball/sports community by s

doing speaking engagements and by having his own basketball team, the Meadowlark Lemon Harlem Allstars, Plaintiff has made it clear that he is no longer associated with the Globetrotters organization. (See Exhibit "L" at p. 9-13, 23). RLASOF 156: The cited testimony of Mr. Lemon indicates only that he is a minister and has a basketball team, not that these activities have "made it clear that he is no longer associated with the Globetrotters organization." 159. On December 23, 2003, Plaintiff sent a letter to HGI and Mannie Jackson,

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 -6-

Filed 12/19/2005

Page 6 of 16

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

requesting any and all documentation which they are relying on that gives Defendants or any other entity authorization to use Plaintiff' name, image, likeness, number, notoriety, and s goodwill. (See Plaintiff' Second Amended Complaint filed on October 1, 2004 ¶ 24; Letter to s Mannie Jackson, CEO of HGI, from Rosenquist & Associates dated December 23, 2003, attached as Exhibit "W"). RLASOF 159: Exhibit W is unsupported by deposition, affidavit, or any other information in the record as required by Fed. R. Civ. P. 56 and LRCiv 56(1)(a) and is immaterial. 160. Defendants did not respond to the inquiry by the stated deadline of January 15,

2004. (See Exhibit "W"; See Plaintiff' Second Amended Complaint filed on October 1, 2004 ¶ s 24). RLASOF 160: Undisputed, but immaterial. Plaintiff' complaint is an insufficient basis s on which to respond to a motion for summary judgment. Fed. R. Civ. P. 56(e). 161. At no time from October 15, 1975 through October 14, 1980, was any clothing,

especially sports ware, being sold with the individual player names on it. (See Exhibit "M" at ¶ 5). RLASOF 161: HGI Defendants and have moved to strike the contents of Exhibit M, the affidavit of Edward Mutum. Plaintiff Lemon did not disclose the name of this witness in discovery or in his Fed. R. Civ. P. 26(a)(1) initial disclosures, and this testimony should be stricken. (Mot. to Strike, Doc 268.) This fact is immaterial, however, since it is undisputed that the Globetrotters used Mr. Lemon' name and likeness for a variety of s commercial and promotional purposes during and since his time as a player, on everything from posters (Lemon Dep. at 125, Doc 199) to cartoons (Id. at 127, 185) to thermoses (Id. at 128-29). 162. Aside from the FUBU clothing line HGI has not been involved in utilizing the

plaintiffs' names and likenesses. (See Exhibit "H" at p. 249-250). RLASOF 162: Dispute in part, but immaterial. Mr. Jackson additionally testified that Plaintiff' name was used in programs (Jackson Dep. at 256, Lemon SJ Ex L, Doc 206), s

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 -7-

Filed 12/19/2005

Page 7 of 16

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

one of the top-selling items of merchandise sold at arenas where the Globetrotters play (DSOF ¶ 32, Doc 196 (citing Syracuse Aff. ¶ 7 & Ex. C-H, Doc 208)), and Plaintiff' s name is used in other merchandising and promotional contexts (e.g., Syracuse Aff. ¶¶ 1719, Doc 208), as Plaintiff Lemon is aware (Lemon Dep. at 191, Doc 199). Historically, the Globetrotters have used Plaintiff' name and likeness for a variety of merchandise s and promotion activities. DSOF ¶¶ 24-31, Doc 196 (citing evidence in the record). 163. Not even the clothing sold in the arenas at Harlem Globetrotters events contains

Plaintiff' name and likeness. (See Exhibit "H" at p. 259). s RLASOF 163: HGI Defendants object in part as unsupported by the record citation, but immaterial. Mr. Jackson testified that the FUBU Apparel was not sold at Globetrotters events, although other apparel is. (Jackson Dep. at 258-59, Lemon SJ Ex L, Doc 206.) 164. Because of Defendants' refusal to reliably quantify sales, Plaintiffs' expert was

unable to completely calculate compensation based solely on individual Plaintiffs. (See Exhibit "R" at p. 40, 102-105, 111-114, 115, 119-121, 130, 133-135, 137-141, 144, 148-149, 155-156, 184-187, 207-208; See also ¶ 147 - 152, supra). RLASOF 164: As Plaintiff' record citations show, any lack of information Plaintiffs' s expert had was due to Plaintiffs' lateness in requesting the information, not "Defendants' refusal to reliably quantify sales." See also Order, 8/3/05, Doc 143; Order, 8/18/05, Doc. 148. 167. HGI entered into an agreement with GTFM and others to license, develop, create,

produce, manufacture, market, promote, sell, and distribute apparel products, goods, and other merchandise, and under the agreement HGI authorized the use of the names and likenesses of any and all players who have played for the Harlem Globetrotters, or who thereafter play for the Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. (See GTFM' Answer to Plaintiff' Second Amended Complaint ¶ 15; HGI' Answer s s s to Plaintiff' Second Amended Complaint, Affirmative Defenses and Counterclaim filed October s 25, 2004 ¶ 15 & ¶ 27). RLASOF 167: Defendants do not dispute that HGI entered into an agreement in June

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 -8-

Filed 12/19/2005

Page 8 of 16

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

2002 that, inter alia, granted GTFM a worldwide license to use the mark and designs of the Harlem Globetrotters to manufacture, market, and sell apparel and related items, and that GTFM could use the name and other information of former Globetrotter players other than Wilt Chamberlain and Magic Johnson. (Syracuse Aff. ¶ 10 & Ex. 1 at GTFM 140-41, Doc 208.) 168. Defendants did not have the right to use Plaintiff' name and likeness in the s

HGI/GTFM clothing line under Plaintiff' old contract. (See Exhibit "B"; Exhibit "C"; Exhibit s "I" at ¶ 8-9). RLASOF 168: This is a legal conclusion not a statement of fact. 170. Plaintiff received a check from the Harlem Globetrotters International Foundation,

which was only for five thousand dollars ($5,000) and Plaintiff did not cash the check. (See Exhibit "I" at ¶ 1). The check did not represent all profits received from styles that included Plaintiff' name and/or likeness. (See Exhibit "A"). s RLASOF 170: Dispute in part, but immaterial. The check was from HGI, not HGIF. (Syracuse Dep. at 21-22, Ex. 24.) HGI Defendants do not dispute that the check does not represent all profits received from styles including Plaintiff' name. When Plaintiffs filed s suit in February 2004, GTFM ceased sending HGI royalty reports or royalty payments related to the Apparel. As a result, HGI ceased sending checks to players. (Syracuse Aff., ¶ 15, Doc 208.) 171. Plaintiff never signed a contract with the original Harlem Globetrotter' owner or s

HGI, in which he signed away his rights in perpetuity for the use of his name and likeness. (See Exhibit "I" at ¶ 8). RLASOF 171: This is a conclusion of law. Plaintiff Lemon admits in affidavit (i.e. Lemon Aff., ¶ 3 & Ex. A, 1975 contract, Doc 283) and elsewhere that he signed player contracts with the Globetrotters. Those contracts contained publicity provisions granting the Globetrotters the right to use Plaintiff Lemon' name, likeness, and other identifying s information beyond the contract term. (Lemon Dep. at 113-15 & Ex. 4, 5, 6, 7 ¶ 15(a), Doc 199.)

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 -9-

Filed 12/19/2005

Page 9 of 16

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

172.

Plaintiff has no agreements/contracts with HGI or GTFM allowing license or use

of his identity, attributes of identity, name, images, or likenesses. (See Exhibit "B"; Exhibit "C"; Exhibit "I" at ¶ 9; Plaintiff' Second Amended Complaint filed on October 1, 2004 ¶ 14.) s RLASOF 172: See 171 above. HGI Defendants also object to Plaintiff' citation to his s own complaint as insufficient to respond to a motion for summary judgment. Fed. R. Civ. P. 56(e). 173. In the book "Spinning the Globe: The Rise, Fall, and Return to Greatness of the

Harlem Globetrotters," which was authored by Ben Green, Mannie Jackson made defamatory statements about Plaintiff, and told lies about the Plaintiffs and other Globetrotter players, and made false implications about Plaintiff by only telling half-truths. (See Exhibit "T"). RLASOF 173: This is a conclusion of law, inadmissible hearsay, and lacks foundation. Plaintiff Lemon purports to cite to multiple pages from a book, some of which discuss Lemon, but none of which attribute any statements (good, bad, or otherwise) about Lemon to Mr. Jackson. In fact, the negative comments about Mr. Lemon in the book appear to come from his former teammates, including some other plaintiffs to this action. This document is immaterial, however, since Plaintiff Lemon has never, until summary judgment in this case, claimed that Mr. Jackson made defamatory statements about Lemon to Mr. Green, and has never identified what those statements are. (e.g., Lemon 2d Amend. Compl., Doc 76.) 174. In interviews for the book "Spinning the Globe: The Rise, Fall, and Return to

Greatness of the Harlem Globetrotters," which was authored by Ben Green, Mannie Jackson made defamatory statements about Plaintiff. 10/28/05, attached as Exhibit "X" at ¶ 13.) RLASOF 174: This is a conclusion of law. HGI Defendants further object Plaintiff' s conclusory, self-serving affidavit is insufficient to support a summary judgment response. Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 (1990); FTC v. Publ' Clearing House, n, g 104 F. 3d 1168, 1171 (9th Cir. 1997). Plaintiff Lemon does not identify what allegedly defamatory statements Mr. Jackson made to Mr. Green. This assertion is also immaterial, (See Affidavit of Meadowlark Lemon dated

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 Filed 12/19/2005 -10-

Page 10 of 16

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

since Mr. Lemon did not plead in his complaint that Mr. Jackson made defamatory statements to Mr. Green. (Lemon 2d Amend. Compl., Doc 76.) LASOF ¶ 174 is also immaterial because Plaintiff Lemon has not shown the statements Mr. Jackson purportedly made to Mr. Green-- whatever they are-- were published. 175. The book "Spinning the Globe" is sold on the Harlem Globetrotters website.

RLASOF 175: Plaintiff' references to the Harlem Globetrotters website are completely s unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). 176. Mannie Jackson has received a monetary benefit from the book "Spinning the

Globe" and the defamatory statements made against Plaintiff. RLASOF 176: This claim is completely unsupported by deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). 177. In a statement that was published in the Arizona Republic on January 17, 2004,

Mannie Jackson made a defamatory statement about Plaintiff. (Exhibit "S"). Specifically, while talking about Meadowlark forming his own team instead of re-joining the Harlem Globetrotter' Mannie Jackson stated "he wanted to be the show. We have a strong brand s, policy instead of a star system, and he wanted more money than I could afford." Id. RLASOF 177: This is a legal conclusion that "Mannie Jackson made a defamatory statement about Plaintiff." Lemon' citation is also incomplete. Defendants do not s dispute that Mr. Jackson was quoted in the Arizona Republic, but the full statement reported was as follows: "What bothers me is the confusion that has taken place, and I don' t get the sense that they are clearing it up," Jackson said. "He and I talked about him doing it with the Globetrotters, but ultimately he needed to do it on his own, Jackson said. "I wanted him to work to pass the torch to the young fellows. But he wanted to be the show. We have a strong brand policy instead of a star system, and he wanted more money than I could afford." Jackson would not disclose how much Lemon sought. "I pray for him that he pulls it off," said Jackson, who played with Lemon in the ` 60s. "If I had the time, I would go out and see a 71-year-old

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 Filed 12/19/2005 -11-

Page 11 of 16

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

man play. But I think he will find the touring and the business is different from the outside." (Lemon Dep., Ex. 9, Doc 199.) 178. Mannie Jackson is the owner and CEO of HGI. (See Exhibit "H" at p. 9).

RLASOF 178: Dispute in part, but immaterial. Mr. Jackson is the CEO and a shareholder of HGI. (Jackson Dep. at 9, Doc 196; Jackson Aff., 10/26/05, ¶¶ 4, 5, Doc 204.) 179. Arizona is a community property state.

RLASOF 179: Immaterial, unsupported, and a legal conclusion. 180. Mannie Jackson' statements and defamatory conduct were made on behalf of the s

community and benefited the community. RLASOF 180: Dispute as a conclusion of law, and as completely unsupported by
deposition, affidavit, or any other information in the record as required by LRCiv 56(1)(a). LASOF ¶ 180 also does not identify what statements and conduct are referred to.

181.

Mannie Jackson was 100% owner of HGI prior to the recent sale and to Plaintiff' s

knowledge is still currently the owner of the Foundation. (See Corporate Filing, attached as Exhibit "Y"). RLASOF 181: HGI Defendants do not dispute that Mannie Jackson was 100% owner of HGI prior to the recent sale, but Plaintiff' claim Jackson is "still currently owner of the s Foundation" is unsupported by the record citation, which does not mention the Foundation. 184. Mannie Jackson negotiated and signed the HGI/GTFM licensing agreement. (See

HGI Memorandum, Doc. 216, Jackson Affidavit at ¶ 9). RLASOF 184: HGI Defendants do not dispute that Mr. Jackson participated in negotiations for the License Agreement, as stated in his affidavit, but Mr. Jackson did not sign it. Michael Syracuse signed the License Agreement on behalf of HGI. (Syracuse Aff., ¶ 10 & Ex. I, Doc 208.) 185. Mannie Jackson sent letters to Plaintiffs regarding the diversion of money to the
Document 348 Filed 12/19/2005 -12Page 12 of 16

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

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

Foundation. (See GTFM Sales Report and Cover letter, attached as Exhibit "Z"). RLASOF 185: Jackson wrote to the players on October 8, 2003, stating that some revenues HGI earned from the License Agreement would be given to HGIF for charitable causes. The payment is not properly characterized as a "diversion of money." 188. Mannie Jackson made a $70 million profit from the sale of the Globetrotters and

he caused HGI to become insolvent by withdrawing over $9 million. (See Exhibit "P"; Exhibit "R" at p. 226-227). RLASOF 188: HGI Defendants object to exhibit P as lacking foundation. HGI Defendants do not dispute that Mr. Jackson recently sold 80% of his stock in HGI for approximately $70 million, a fact that is completely at odds with Plaintiff' reckless s accusation that Mr. Jackson made HGI insolvent by withdrawing $9 million. 189. Mannie Jackson, and his long time employees, Lenihan and Syracuse, control the

Foundation. (See Foundation Filing, Exhibit "BB"). RLASOF 189: HGI Defendants admit Mr. Syracuse and Ms. Lenihan are listed as President and Secretary/Treasurer of the Foundation on Exhibit BB. Mr. Jackson is not listed. 191. Ms. Jackson testified that she does various charity work but when asked if she did

any for the Foundation she answered "absolutely not," and, incredibly, she doesn' even know t who is on the board. (See Catherine Jackson Deposition Transcript, attached as Exhibit "DD" at p. 15). RLASOF 191: Undisputed, except for Plaintiff' counsel' characterization that it is s s "incredible" that Ms. Jackson does not know who is on the board of a Foundation she is not involved with. 192. Ms. Jackson' charity, Arizona Foundation for Women, was paid $4,500.00 from s

the Foundation in 2002 and 2003 according to Foundation cash disbursement report filed with the State of Arizona. (See Exhibit "DD" at 37; Foundation Report, attached as Exhibit "G"). RLASOF 192: HGI Defendants object to Exhibit G as lacking foundation and containing inadmissible hearsay. HGI Defendants do not dispute that Ms. Jackson is

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 Filed 12/19/2005 -13-

Page 13 of 16

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

involved in the Arizona Foundation for Women. 193. The Foundation clearly was the recipient of revenues directly attributable to the

sale of HGI/GTFM clothes bearing Plaintiff' name and likeness. (See Exhibit "Z"; Exhibit "K" s at 42, 86; Exhibit "H" at 147-148). RLASOF 193: Some royalties earned from sales of FUBU merchandise were paid to Defendant Harlem Globetrotters International, Inc. and HGI in turn paid some of its royalties to HGIF. (Syracuse Aff., Exs. I, K, Doc. 208.) 194. None of the Plaintiffs, including Mr. Lemon, has any idea what the Foundation

does with the money it makes off of their names and likenesses. (See Exhibit .D at 50; Exhibit "E" at 128; Exhibit "F" at 97-98, 107). RLASOF 194: The record cited does not reflect Plaintiff Lemon' knowledge. s 195. Public records reveal a list of numerous recipients of the Foundation' largesse, s

which was earned from Plaintiffs' names, yet not one payment was made to any needy former player. (See Exhibit "G"). RLASOF 195: HGI Defendants object to Exhibit G as lacking foundation and containing inadmissible hearsay. Notwithstanding and without waiving these objections, Exhibit G appears to only list recipients of Foundation monies for August 1, 2002, to September 2, 2004, and does not support Plaintiff' statement for anything other than this s time period. 196. Mannie Jackson could not name a single former Globetrotter player helped by the

Foundation (See Exhibit "H" at 199). RLASOF 196: Undisputed. As Plaintiff' record citation indicates, Mr. Jackson s testified that approximately half a dozen former players had received a benefit from the Foundation but could not recall names. 197. The Foundation has controlled millions of dollars at the discretion and control of

Mannie Jackson. (See Foundation Receipt Report, attached as Exhibit "EE"). RLASOF 197: HGI Defendants object to Exhibit E as lacking foundation and containing inadmissible hearsay. Exhibit E does not support Plaintiff' contention, and appears only s

Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007

Document 348 Filed 12/19/2005 -14-

Page 14 of 16

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

to be one page of a tax return that includes neither Mr. Jackson' name or figures in the s millions. 200. While Catherine Jackson testified she didn' know if marital funds were used to t

buy the Globetrotters team in 1993, she stated in her deposition "We didn' even own the t company back then." (See Exhibit "DD" at p. 30, 35-36). RLASOF 200: Undisputed, but immaterial. Plaintiff' counsel did not ask questions s about Ms. Jackson' use of "we." s 201. Plaintiff' prior contracts with the Globetrotters did not give the Defendants s

license to use Plaintiff' name and likeness as Defendants did in the HGI/GTFM clothing line. s (See Exhibit "B"; Exhibit "C"). RLASOF 201: This is a legal conclusion not a statement of fact. 202. Plaintiff' expert report sets forth evidence of Plaintiff' actual damages and s s

Plaintiff' entitlement to Defendants' profits received under the HGI/GTFM licensing s agreement. (See Plaintiff' Expert Report, attached as Exhibit "A"). s RLASOF 202: Whether Plaintiff is entitled to HGI' profits is a legal conclusion. s Plaintiff' expert report purports to calculate HGI' profits, but the report does not set s s forth any monetary harm Plaintiff Lemon suffered as a result of the License Agreement. RESPECTFULLY SUBMITTED 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' l, Inc., Harlem Globetrotters Int' Foundation, and l Mannie L. & Catherine Jackson
Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007 Document 348 Filed 12/19/2005 -15Page 15 of 16

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 Case 2:04-cv-00299-DGC PHX/RHARRIS/1743156.2/43458.007 s/ Melody Tolliver

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] 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

Document 348 Filed 12/19/2005 -16-

Page 16 of 16