Free Reply - District Court of Arizona - Arizona

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Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MEADOWLARK LEMON, a married man, Plaintiff, vs. PLAINTIFF MEADOWLARK LEMON'S REPLY TO GTFM, LLC'S AND FUBU THE COLLECTION LL'C OBJECTIONS TO MEADOWLARK LEMON'S STATEMENT OF FACTS AND FURTHER STATEMENT OF FACTS Case No. CV 04-299 PHX-DGC and CV 04 1023 PHX-DGC

HARLEM GLOBETROTTERS INTERNATIONAL, 10 INC., an Arizona corporation; HARLEM GLOBETROTTERS INTERNATIONAL 11 FOUNDATION, INC., an Arizona corporation; MANNIE L. JACKSON and CATHERINE 12 JACKSON, husband and wife; FUBU THE COLLECTION, LLC, a New York limited liability 13 company doing business in Arizona; GTFM, LLC, a New York limited liability company doing business 14 in Arizona; 15 16 17 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, 18 Counter-claimant, 19 vs. 20 MEADOWLARK LEMON, a married man, 21 Counterdefendant. 22 23 24 25 26 Defendants.

Plaintiff Meadowlark Lemon (hereinafter "Mr. Lemon" or "Plaintiff"), hereby submits his Reply to Defendant GTFM, LLC's and FUBU the Collection, LLC's (hereinafter collectively as "Defendants") Objections to Meadowlark Lemon's Statement of Facts and Further Statement of Facts. In response to most of Defendants' objections, Plaintiff would be required to respond by restating Case 2:04-cv-00299-DGC Document 329 Filed 12/15/2005 Page 1 of 12

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the facts already set forth in his Statement of Facts, Doc. 206, Plaintiff's Statement of Contraverting Facts in Response to the GTFM's Motion for Summary Judgment ("GTFM SOCF"), Doc. 248, and in Plaintiff's Statement of Contraverting Facts in Response to FUBU the Collection's Renewed Motion for Summary Judgment ("FUBU SOCF"), Doc. 246. Rather than reiterate those facts that have already been so extensively set forth by Plaintiff, for his reply Plaintiff will rely on the facts as set forth in those three documents. Some of Defendants objections allege that Plaintiff's statements are unsupported by the record citation. Rather than responding to every objection made on that basis, Plaintiff will state that the record speaks for itself and will rely on the record citations made in his Statement of Facts. Furthermore, Plaintiff would like to point out to the Court that the statements which form the basis of some of Defendants' disputes do not cite to any part of the record, or contain any legal citation in support thereof. Therefore, Plaintiff would object to those statements and request that the Court not consider any such statements made by Defendant. Plaintiff replies to Defendants Further Statement of Facts ("DFSOF") as follows: UNDISPUTED FACTS: 1. Plaintiff agrees with ¶ 14 of DFSOF. 2. Plaintiff agrees with ¶ 19 of DFSOF. 3. Plaintiff agrees with ¶ 23 of DFSOF. 4. Plaintiff agrees with ¶ 24 of DFSOF that the FUBU/HGI apparel displayed the Globetrotters' name and FUBU trademarks, and affirmatively asserts that the apparel also displayed Plaintiffs' names. -2Document 329

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5. Plaintiff agrees with ¶ 26 of DFSOF. 6. Plaintiff agrees with ¶ 31 of DFSOF. 7. Plaintiff agrees with ¶ 45 of DFSOF. DISPUTED FACTS: 8. Plaintiff disputes ¶ 1 of DFSOF as a conclusion of law. Furthermore, Plaintiff affirmatively asserts that he has stated claims against FUBU the Collection, LLC in Plaintiff's Motion for Summary Judgment (Doc. 197) and Statement of Facts filed therewith (Doc. 206), Plaintiff's Response to GTFM's Motion for Summary Judgment (Doc.247) and the Statement of Contraverting Facts filed therewith (Doc. 248), and Plaintiff's Response to Defendant FUBU the Collection's Motion for Summary Judgment (Doc. 244) and the Statement of Contraverting Facts filed therewith (Doc. 246). 9. Plaintiff disputes ¶ 2 of DFSOF insofar as it insinuates that Plaintiff's reference to GTFM was solely a reference to GTFM, LLC. Plaintiff affirmatively asserts that all parties have referred to the FUBU-related entities/defendants in this matter collectively as GTFM, and therefore Plaintiff's references to GTFM in his Motion for Summary Judgment was a reference to all FUBU-related entities/defendants. Plaintiff asserts that he has stated a claim against both

GTFM, LLC and FUBU the Collection, LLC. (See ¶ 8, supra). 10. Plaintiff disputes ¶ 3 of DFSOF as stated in ¶ 9, supra. 11. Plaintiff disputes ¶ 4 of DFSOF as stated in ¶ 8-9, supra. 12. Plaintiff disputes ¶ 5 of DFSOF and affirmatively asserts that Plaintiff has demonstrated that the -3Document 329

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Globetrotters FUBU apparel used Plaintiff's likeness and/or image. (GTFM SOCF, Doc. 248, ¶ 44-47). 13. Plaintiff disputes ¶ 6 of DFSOF and affirmatively asserts that he has produced evidence illustrating that the number 36, standing alone, has acquired secondary meaning, caused confusion and led consumers to believe that Plaintiff approved of the product. (See Plaintiff's Statement of Contraverting Facts in Response to the HGI Defendants' Motion for Summary Judgment ("HGI SOCF"), Doc. 283, ¶ 76-77, 79, 127-130; GTFM SOCF, Doc. 248, ¶ 44-47). 14. Plaintiff disputes ¶ 7 of DFSOF and affirmatively asserts that pursuant to Fed.R.Civ.P. 56(e), Plaintiff's affidavit is proper evidence to support facts contained in his Motion for Summary Judgment. Defense counsel's self-serving statement in his declaration that "Lemon's statement in his affidavit...is insufficient" is directly contrary to Rule 56(e) of the Federal Rules of Civil Procedure. 15. Plaintiff disputes ¶ 8 of DFSOF and affirmatively asserts that the number 36 was retired when Plaintiff was inducted into the Basketball Hall of Fame. (HGI SOCF, Doc. 283, ¶ 76-77, 79). 16. Plaintiff disputes ¶ 9 of DFSOF and affirmatively asserts that Plaintiff has adduced evidence that he has achieved secondary meaning in his identity, and Plaintiff has presented evidence of his fame. (HGI SOCF, Doc. 283, ¶ 118, 126; GTFM SOCF, Doc. 248, ¶ 44-45). 17. Plaintiff disputes ¶ 10 of DFSOF and affirmatively asserts that Plaintiff has adduced evidence of likely confusion. (HGI SOCF, Doc. 283, ¶ 113, 125-131; GTFM SOCF, Doc. 248, ¶ 44-47). 18. Plaintiff disputes ¶ 11 of DFSOF and affirmatively asserts that Plaintiff has produced evidence indicating that consumers mistakenly believed that Plaintiff was connected with the FUBU/HGI Case 2:04-cv-00299-DGC -4Document 329 Filed 12/15/2005 Page 4 of 12

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Apparel. (HGI SOCF, Doc. 283, ¶ 113, 125-130). 19. Plaintiff disputes ¶ 12 of DFSOF and affirmatively asserts that Plaintiff does have evidence of public recognition linking him with the Apparel. (HGI SOCF, Doc. 283, ¶ 113; GTFM SOCF, Doc. 248, ¶ 44-47). 20. Plaintiff disputes ¶ 13 of DFSOF and affirmatively asserts that Plaintiff has licensed his name since he ceased playing for the Globetrotters. (GTFM SOCF, Doc. 248, ¶ 41; HGI SOCF, Doc. 283, ¶ 118, 125). 21. Plaintiff disputes ¶ 15 of DFSOF and affirmatively asserts that Plaintiff uses and licenses his `alleged mark.' (GTFM SOCF, Doc. 248, ¶ 41; HGI SOCF, Doc. 283, ¶ 118, 125). 22. Plaintiff disputes ¶ 16 of DFSOF and affirmatively asserts that Plaintiff has produced evidence that he licenses his name and likeness. (GTFM SOCF, Doc. 248, ¶ 41; HGI SOCF, Doc. 283, ¶ 118, 125). 23. Plaintiff disputes ¶ 17 of DFSOF and affirmatively asserts that Plaintiff has entered into licensing agreements within the last seven years. (GTFM SOCF, Doc. 248, ¶ 41; HGI SOCF, Doc. 283, ¶ 118, 125). 24. Plaintiff disputes ¶ 18 of DFSOF and affirmatively asserts that Plaintiff has produced evidence that the FUBU/HGI apparel sold because of the strength of Plaintiff's name. (HGI SOCF, Doc. 283, ¶ 136-146). 25. Plaintiff disputes ¶ 20 of DFSOF and affirmatively asserts that Plaintiff has produced evidence indicating the FUBU/HGI apparel is likely to or has caused consumer confusion. (HGI SOCF,

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Doc. 283, ¶ 113). 26. Plaintiff disputes ¶ 21 of DFSOF and affirmatively asserts that Plaintiff has sold sports and basketball products with his name on it through licensing his name and likeness. (HGI SOCF, Doc. 283, ¶ 142). Furthermore, Defendants themselves have a pending counterclaim against Plaintiff for selling a basketball featuring Plaintiff's likeness. 27. Plaintiff disputes ¶ 22 of DFSOF. (See ¶ 26, supra). 28. Plaintiff disputes ¶ 25 of DFSOF as not supported by the record. Defendants cited to defense counsel's declaration to support the proposition that consumers likely believed that the Globetrotters endorsed the FUBU/HGI Apparel and not Plaintiff. However, defense counsel cites to (nowhere) in the record to support this proposition, and this empty statement is made without personal knowledge on the part of defense counsel. Defendants have never disclosed any proof or evidence, and have not conducted any other research on what consumers likely believed. Plaintiff further states that he has produced evidence that consumers likely believed that Lemon endorsed the HGI/GTFM apparel. (HGI SOCF, Doc. 283, ¶ 113, 125-131; GTFM SOCF, Doc. 248, ¶ 44-47). 29. Plaintiff disputes ¶ 27 of DFSOF and affirmatively alleges that Defendants are currently selling FUBU/HGI apparel. (HGI SOCF, Doc. 283, ¶ 34). 30. Plaintiff disputes ¶ 28 of DFSOF and affirmatively alleges that Plaintiff is not "relying" on Mr. Mutum's affidavit, but merely used it to further support a proposition advanced by Defendants themselves throughout this litigation: that Defendants have never before licensed Plaintiff's name for use on a line of clothing. (See Plaintiff's Response to Defendants' Motion to Strike -6Document 329

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Affidavit of Edwin James Mutum, Doc. 317). 31. Plaintiff disputes ¶ 29 of DFSOF and will refer the Court to Plaintiff's Response to Defendants' Motion to Strike Affidavit of Edwin James Mutum, Doc. 317. 32. Plaintiff disputes ¶ 30 of DFSOF and affirmatively asserts that Plaintiff's Complaint is not based on rank hearsay and it was proper for Plaintiff to refer to the pleadings filed in this case in this Motion for Summary Judgment. Defendants fail to realize that the Court considers the

pleadings, as well as other documents submitted with the Motion for Summary Judgment and contained in the record, when rendering its judgment. Specifically, Rule 56(c) states: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c). Therefore, it is of no consequence whether Plaintiff attached the pleadings as exhibits to his motion for summary judgment, as the Court already takes the pleadings, and statements contained therein, under consideration when rendering a decision on a motion for summary judgment. Since the Court will already be considering the statements contained in Plaintiff's Second Amended Complaint, HGI's Answer, and GTFM's answer, it was proper for Plaintiff's to recite those statements in his Statement of Facts 33. Plaintiff disputes ¶ 32 of DFSOF and affirmatively asserts that, aside from the HGI/FUBU agreement, the Globetrotters have not licensed Plaintiff's name and likeness since he left the Globetrotters. Furthermore, since leaving the Globetrotters, Defendants have only used

Plaintiff's name in their program. (HGI SOCF, Doc. 283, ¶ 90-91; GTFM SOCF, Doc. 248, ¶ 76-78, 102). -7Document 329

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34. Plaintiff disputes ¶ 33 of DFSOF and affirmatively asserts that Plaintiff has produced evidence of Defendants willful infringement of his rights. (GTFM SOCF, Doc. 248, ¶ 55). 35. Plaintiff disputes ¶ 34 of DFSOF and affirmatively asserts that Defendants completely failed to perform due diligence concerning the License Agreement. (GTFM SOCF, Doc. 248, ¶ 36-38, 80-89). 36. Plaintiff disputes ¶ 35 of DFSOF and affirmatively asserts that Defendants did enter into the Licensing Agreement blindly. (GTFM SOCF, Doc. 248, ¶ 36-38). 37. Plaintiff disputes ¶ 36 of DFSOF and affirmatively assets that GTFM never requested to see the player contracts, and merely relied on the representations of Mannie Jackson. (GTFM SOCF, Doc. 248, ¶ 37). 38. Plaintiff disputes ¶ 37 of DFSOF and affirmatively asserts that the service rendered to (or taken by) Defendants was Plaintiff's celebrity status and goodwill. Defendants fed off Plaintiff's celebrity status and goodwill and used that for their own commercial profit. (GTFM SOCF, Doc. 248, ¶ 60-64, 79). 39. Plaintiff disputes ¶ 38 of DFSOF and affirmatively asserts that he did suffer a loss of income as a result of Defendants actions. (GTFM SOCF, Doc. 248, ¶ 42, 48, 54; HGI SOCF, Doc. 283, ¶ 115). 40. Plaintiff disputes ¶ 39 of DFSOF and affirmatively asserts that he did suffer a loss of income as a result of the FUBU/HGI apparel. (See ¶ 39, supra). 41. Plaintiff disputes ¶ 40 of DFSOF and affirmatively asserts that although Plaintiff did receive a

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check from HGI for $5,000.00. He did not cash the check because it was obviously a set-up because it was mailed to Plaintiff only after Defendants became aware that a lawsuit was going to be filed. In no way did the check represent an acceptance of the profits Plaintiff was entitled to: it was a tactical subterfuge. (GTFM SOCF, Doc. 248, ¶ 26; HGI SOCF, Doc. 283, ¶ 170). 42. Plaintiff disputes ¶ 41 of DFSOF and affirmatively asserts that Plaintiff is also seeking punitive damages. (See Plaintiff's Second Amended Complaint filed on October 1, 2004). 43. Plaintiff disputes ¶ 42 of DFSOF and affirmatively asserts that he was not required to determine what a reasonable royalty rate was for the use of Plaintiff's name, number and likeness as Plaintiff used a different methodology in computing the amount of damages. (GTFM SOCF, Doc. 248, ¶ 52-53). 44. Plaintiff partially disputes/agrees with ¶ 43 of DFSOF. Plaintiff agrees with the statement to the extent that it states Plaintiff was harmed by the Alleged Infringing Goods. Plaintiff agrees that he has been harmed by the Alleged Infringing Goods however; the Plaintiff's statement was taken out of context. Plaintiff asserts he testified that he has been harmed by the Alleged Infringing Goods because GTFM used his name and likeness without his authority, he was not properly compensated for the use of his name and likeness, and he was embarrassed that GTFM was putting his name on clothing that Plaintiff did not approve of. (GTFM SOCF, Doc. 248, ¶ 21). 45. Plaintiff disputes ¶ 44 as not supported by the record. Defendants cited to defense counsel's declaration to support the proposition that Plaintiff has not submitted any evidence to demonstrate that the Alleged Infringing goods placed him in a false light. However, defense counsel cites to (nowhere) in the record to support this proposition. Plaintiff indeed produced Case 2:04-cv-00299-DGC -9Document 329 Filed 12/15/2005 Page 9 of 12

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evidence that the Alleged Infringing goods placed him in a false light through proof that Defendants used Plaintiff's name to falsely endorse a product representing that the Plaintiff consented when in fact he did not. (GTFM SOCF, Doc. 248, ¶ 36, 41, 74-75; see also Plaintiff's Motion for Summary Judgment, Doc. 197, and Plaintiff's Response to GTFM's Motion for Summary Judgment, Doc. 247).

RESPECTFULLY SUBMITTED this By:

15th

day of December 2005.

/s/ Anders Rosenquist ROSENQUIST & ASSOCIATES Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. 2. I hereby certify that on December 15th , 2005, a true and correct copy of the foregoing PLAINTIFF MEADOWLARK LEMON'S REPLY TO GTFM LLC'S AND FUBU THE COLLECTION, LLC'S OBJECTIONS TO MEADOWLARK LEMON'S STATEMENT OF FACTS AND FUTHER STATEMENT OF FACTS was sent by postage-prepaid first-class mail, addressed to: Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants FUBU the Collection, LLC, GTFM of Orlando, LLC and GTFM, LLC Clay Townsend, Esq. Morgan, Colling & Gilbert, PA 20 N. Orange Avenue 16th Floor Orlando, FL 32802 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers, -11Document 329 Filed 12/15/2005

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Thorton, Hall, Haynes and Sanders Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 15th day of December 2005, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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