Free Response in Opposition to Motion - 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. HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation; MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE COLLECTION, LLC, a New York limited liability company doing business in Arizona; GTFM, LLC, a New York limited liability company doing business in Arizona; Defendants. PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANTS HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON'S MOTION FOR SUMMARY JUDGMENT Case No. CV 04-299 PHX-DGC and CV 04 1023 PHX-DGC

HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, Counter-claimant, vs. MEADOWLARK LEMON, a married man, Counterdefendant.

Plaintiff, Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, respectfully submits his Response to Defendants Harlem Globetrotters International, Inc. (hereinafter "HGI"), Harlem Globetrotters International Foundation (hereinafter "the Foundation"), and Mannie L. & Catherine Jackson's (collectively as "Defendants) Motion for Partial Summary Judgment. Plaintiff Case 2:04-cv-00299-DGC Document 282 Filed 11/30/2005 Page 1 of 20

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asserts that based upon the undisputed facts in this case as set forth in the Statement of Contraverting Facts and in Plaintiff's Motion for Summary Judgment, Plaintiff is entitled to summary judgment on all counts enumerated in the Complaint. Plaintiff respectfully requests that Defendants' Motion for

Summary Judgment be denied and that summary judgment be awarded to Plaintiff. The following Memorandum of Points and Authorities, Statement of Contraverting Facts ("SOCF") incorporated by reference, and Plaintiff's Motion for Summary Judgment submitted on October 28, 2005 support this motion. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS. Plaintiff incorporates herein by reference those undisputed and disputed facts that are set forth in his Statement of Contraverting Facts in Support of Plaintiff Meadowlark Lemon's Response to Defendants' Motion for Summary Judgment. II. HGI, THE FOUNDATION, AND THE JACKSONS ARE ALL PROPER DEFENDANTS IN THIS ACTION. Defendants argue that "Mannie Jackson, Catherine Jackson, and the Foundation are improper parties to this action and should be dismissed." (See Defendants' Motion for Summary Judgment at 23). However, as set forth below, all three defendants are proper parties this action. A. Mannie Jackson. When an `employee' receives a benefit from the infringement such as royalties based on the revenues or profits from the infringing goods, instead of just receiving a salary, that `employee' is severally liable for any profits earned in connection with the infringing activity. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545 (9th Cir. 1989) (employee would be held severally liable if he received profits he himself earned in connection with the copyright infringement). As to Mannie Jackson being a proper party: 1) 2) 3) 4) Mannie Jackson was the sole shareholder of HGI prior to the recent sale; He made a profit of approximately $70 million from the sale of the Globetrotters (SOCF ¶105, 188); Mannie Jackson caused HGI to become insolvent by withdrawing over $9 million (SOCF ¶ 188); He was 100% owner of HGI prior to the recent sale and to Plaintiff's knowledge is still currently the owner of the Foundation (SOCF ¶ 181);

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5) 6) 7) 8) 9)

Jackson participated in the negotiations and signed the licensing agreement with GTFM (SOCF ¶ 182, 184); GTFM relied on Jackson's personal representations when deciding to enter into the licensing agreement and to not perform any due diligence as to HGI's authority to license Plaintiff's name and likeness. (SOCF ¶ 183); Jackson sent letters to Plaintiffs regarding the diversion of money to the Foundation (SOCF ¶ 185); Jackson's daughter is the only employee of the Foundation and she is paid by the Foundation (SOCF ¶ 186); Jackson himself made the decision to place merchandise revenue in the Foundation (SOCF ¶ 187). Mannie Jackson's liability is, therefore, not a function of piercing the veils of his alter ego

corporations. Plaintiff's Complaint alleges that Mannie Jackson is directly liable and Plaintiff seeks to disgorge any royalties or revenues received by Mr. Jackson as a result of the trademark infringement. Mannie Jackson did MUCH MORE than just `exercise that control which stock ownership gives to the stockholders.' Therefore, Mannie Jackson is a proper party to this litigation. Lastly, Mannie Jackson is a proper party as Plaintiff's defamation claim goes directly to the actions and defamatory remarks made by Mr. Jackson personally. B. Catherine Jackson. Catherine Jackson is also a proper party to this litigation. Community property is liable for the intentional and negligent torts of either spouse occurring while that spouse is acting for a community purpose or on behalf of the community. See McFadden v. Watson, 51 Ariz. 110, 74 P.2d 1181 (1938) (when a husband in his business made a false charge against an employee, the community was responsible for the defamation); See DePinto v. Provident Sec. Life Ins. Co., 374 F.2d 50 (9th Cir. 1967) (community was liable for husband's negligence as corporate director). A.R.S. §25-215 (D) provides that in an action on a debt obligation incurred for the benefit of the community the spouses shall be sued jointly. This provision has been broadly construed to cover tort liability. Villescas v. Arizona Copper Co., 20 Ariz 268, 129 P. 963 (1919). Existing law supports a reasonably legal basis for Ms. Jackson being a party in this lawsuit if, for no other reason than her status as the spouse of Mannie Jackson, the sole owner and alter ego of the Defendant corporations, and because of the community property laws of the State of Arizona. Catherine Jackson has been married to Mannie Jackson for twenty-seven years and was married to him at the time -3Document 282

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the team was purchased. (SOCF ¶ 198). Joint tax returns have been filed since they were married. (SOCF ¶ 199). While she testified she didn't know if marital funds were used to buy the team in 1993, she stated in her deposition "WE didn't even own the company back then." (SOCF ¶ 200). It is noteworthy that she said "we" instead of "Mannie", and it is undisputed that the ownership of HGI is community property, and all wrongful acts were on behalf of the community. Investigation and discovery by Plaintiff revealed that even if Ms. Jackson may not have participated directly in Mr. Jackson's actions (which include entering the HGI/GTFM licensing agreement and exploiting Plaintiff's name and likeness without authority) she has received under Arizona law benefits that Mr. Jackson derived from the commercial exploitation of Plaintiff's rights of publicity. The recent events involving Mr. Jackson's paying himself a personal dividend of over $9 million, and the sale of 80% of HGI's assets for $70 million, combined with the changes in ownership and governance of Defendants' corporations further support the reasonableness of and evidentiary support for Plaintiff's refusal to dismiss Ms. Jackson. (SOCF ¶ 105, 188). It is Mannie Jackson's actions which have exposed Ms. Jackson to the unpleasantness of litigation, not Plaintiff. Neither Plaintiff, nor his counsel, have any motivation to subject Ms. Jackson to this litigation unless necessary to vindicate his rights. C. The Foundation. Catherine Jackson's Affidavit conveys her assurance that her husband Mannie owns and controls HGI but is silent as to the ownership or control of the Foundation. (See C. Jackson Affidavit dated 9/13/05 ¶ 5, attached to Defendants Motion for Sanctions, Doc. 216). Respectfully, Ms. Jackson need have only consulted public records to learn that her husband, Mannie Jackson, and his long time employees, Lenihan and Syracuse, control the Foundation. (SOCF ¶ 189). It is no wonder Ms. Jackson doesn't know much about the Foundation--neither do longtime alumni director, Governor Vaughn, or Coach Lou Dunbar: "I'm not quite sure exactly what it does," --or who it has helped: "none that I know of." (SOCF ¶ 190). Ms. Jackson testified that she does various charity work but when asked if she did any for the Foundation (again, wholly owned and controlled by her husband supposedly to help old needy players) she answered "absolutely not," and, incredibly, she doesn't even know who is on the board. (SOCF ¶ 191). This statement is not credible considering that Ms. Jackson's charity, Arizona

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Foundation for Women, was paid $4,500.00 from the Foundation in 2002 and 2003 according to Foundation cash disbursement report filed with the State of Arizona. (SOCF ¶ 192). The Foundation clearly was the recipient of revenues directly attributable to the sale of HGI/GTFM clothes bearing Plaintiff's name and likeness. (SOCF ¶ 193). Yet, 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. (SOCF ¶ 194). Public records reveal a list of numerous (presumably happy) recipients of the Foundation's largesse (earned from Plaintiffs' names) yet not one payment to any needy former player. (SOCF ¶ 195). Mannie Jackson could not name a single former Globetrotter player helped by the Foundation. (SOCF ¶ 196). The Foundation has controlled millions of dollars at the sole discretion of Mannie Jackson. (SOCF ¶ 197). Pursuant to the above facts, it is clear that the Foundation is a proper party to this litigation because a portion of the FUBU royalties were directly paid to the Foundation. III. PLAINTIFF'S LANHAM ACT CLAIM DOES NOT LACK MERIT AND IN FACT PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT IN HIS FAVOR ON THE LANHAM ACT CLAIM. A. Plaintiff Has Established the Element of `Secondary Meaning' and Therefore Plaintiff's Name and Number is a Protectable Mark. Defendants first assert that Plaintiff cannot show his name and number is a protectable mark because it has not acquired `secondary meaning.' (See Defendants' Motion for Partial Summary Judgment at 3-6). As Defendants cite in their Motion, "Secondary meaning is the consumer's

association of the mark with a particular source or sponsor." (See Defendants' Motion for Summary Judgment at 4, citing E. & J. Gallo Winery v. Gallo Cattle Company, 967 F.2d 1280, 1291 (9th Cir. 1992)). It is clear that Defendants use of Plaintiff's name and player number would cause the consumer to associate the clothing with Plaintiff as the source and/or sponsor. (SOCF ¶ 113, 127-129, 131, 138, 141-145). Plaintiff is the only person named Meadowlark Lemon that has ever played for the

Globetrotters and therefore there is no other "Lemon" that consumers could possibly associate the `mark' with as the source or sponsor. Plaintiff was inducted into the Basketball Hall of Fame and his player number was retired so no other Globetrotter player will wear number thirty-six. (SOCF ¶ 137, 157). Plaintiff is the only Globetrotter player to have worn number thirty-six and since that number has -5Document 282

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been retired it will forever be associated with Plaintiff. (SOCF ¶ 77-79, 139-140, 157). Plaintiff is a well-known celebrity, has used his name to promote his ministries and charities and his own basketball team, and currently licenses his name for other endorsement deals. (SOCF ¶ 137, 141-145, 147). Because consumers associate Plaintiff's name and player number (the `mark') with Plaintiff as the source/sponsor, Plaintiff has proven the element of secondary meaning. E & J Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1291 (9th Cir. 1992). B. Plaintiff Has Demonstrated a Likelihood of Consumer Confusion. Defendants also assert that Plaintiff "cannot demonstrate a likelihood of confusion." (See

Defendants' Motion for Partial Summary Judgment at 6-10). Section 43(a) of the Lanham Act creates a civil cause of action for celebrities because they possess an economic interest in their identities akin to that of a trademark holder. Rosa Parks v. LaFace Records, 329 F.3d 437, 445 (6th Cir. 2003). The test for trademark infringement, unfair competition or violation of section 43(a) of the Trademark Laws, 15 U.S.C. § 1125(a), is whether defendant's use of the name is likely to cause confusion with plaintiff's prior use of the name. New West Corp. v. NYM Co. of California, Inc., 595 F.2d 1194, 1198 (9th Cir. 1979). In determining the issue of likelihood of confusion, the factors that are relevant to the

determination (but not mandatory) include: 1) similarity of the marks; 2) relatedness of the products; 3) intent of the defendant in selecting the mark; 4) strength of plaintiff's mark; and 5) actual confusion. See Golden Door, Inc. v. Odisho, 646 F.2d 347, 349-350 (9th Cir. 1980), White v. Samsung Electronics America, Inc., 971 F.2d 1395, 1400 (9th Cir. 1992). As stated by Defendants, the factors are not necessarily of equal importance or applicable in every case and are only intended to guide the court in analyzing a Section 43(a) claim. (See Defendants' Motion for Summary Judgment at 6, citing E & J Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290-91 (9th Cir. 1992). In cases involving confusion over endorsement by a celebrity plaintiff, "mark" means the celebrity's persona. See Golden Door, Inc. v. Odisho, 646 F.2d 347, 349-350 (9th Cir. 1980), White v. Samsung Electronics America, Inc., 971 F.2d 1395, 1400 (9th Cir. 1992). The "strength" of the mark refers to the level of recognition the celebrity enjoys among members of the society. Id. Therefore, to establish the `likelihood of confusion' element, Plaintiff must show that Defendants' use of his name, by licensing it to be used in a clothing line, is likely to cause confusion among consumers as to the

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connection between him and the goods.

Plaintiff has met the relevant factors and therefore has

established the `likelihood of confusion' element. First, the "mark" used by Defendants and Plaintiff's "mark" is identical. Defendants used Plaintiff's name and retired player number. Most of the clothing or tags either had Plaintiff's entire name emblazoned across it, would have just his first or last name on it, or just his retired number. Defendants used Plaintiff's name on sports apparel, including basketball apparel, which is the only sport that Plaintiff is famous for. Plaintiff continues, through his ministries and charities, to produce and distribute sports and basketball products with his name on it, and Plaintiff currently licenses his name for the endorsement of sports-related products. (SOCF ¶ 137, 141-145, 147). Through Plaintiff's

continued promotion of himself in the basketball/sports community by doing speaking engagements and by having his own basketball team, Plaintiff has made it clear that he is no longer associated with the Globetrotters organization. (SOCF ¶ 156). Third, the intent of Defendants in selecting Plaintiff's name to use in the clothing line is clear: commercial profit. (SOCF ¶ 150-155). Fourth, the "strength" of

Plaintiff's `mark,' which refers to the level of recognition he enjoys among members of the society, is very strong as evidenced by his induction into the Basketball Hall of Fame. (SOCF ¶ 79, 140-145, 147, 157). Not only are the Harlem Globetrotters a well-known team around the world, but Plaintiff is the most recognized player. (SOCF ¶ 145). Lastly, the public is very aware that celebrities, especially sports celebrities, make profits from endorsing products such as clothing, etc. confusion is certain. Defendants' request for summary judgment on this claim should be denied. Plaintiff has Therefore, actual

established that there is no issue as to any material fact regarding Defendants' use of Plaintiff's `mark' and the likely confusion that will result among the public as to the connection between Plaintiff and the clothing line, therefore it is Plaintiff that is entitled to summary judgment against Defendants as a matter of law. C. Plaintiff's Lanham Act Claims Are Not Barred by Estoppel/License. Defendants also assert that Plaintiff's Lanham Act claims are barred by the defense of estoppel/license because "the Player Contracts granted the Globetrotters the license and right to use Plaintiffs' names." (See Defendants' Motion for Summary Judgment at 10-14). In support of their proposition, Defendants cite several cases, including MWS Wire Industries, Inc. v. California Fine Wire Case 2:04-cv-00299-DGC -7Document 282 Filed 11/30/2005 Page 7 of 20

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Co., Inc., 797 F. 2d 799 (9th Cir. 1986) and Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326 (6th Cir. 1973). Defendants argue that those cases set forth the defense of estoppel such that Plaintiff is `estopped' from suing Defendants because, as Defendants argue, Plaintiff gave Defendants the right to license his name and likeness as they did in the HGI/GTFM licensing agreement. However, the cases cited by

Defendants support no such proposition. Although the cases do discuss the defense of estoppel, they conclude that the defense arises only in trademark infringement cases where a contract exists which evidences that the parties previously agreed on the validity of the trademark. See MWS Wire Industries, Inc. v. California Fine Wire Co., Inc., 797 F. 2d 799 (9th Cir. 1986) (concluding that had a contract existed which recognized the validity of plaintiff's trademark, defendant would be estopped from asserting the defense that plaintiff's mark was invalid); See also Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326 (6th Cir. 1973) (because defendant had already acknowledged the validity of plaintiff's trademark, defendant estopped from reopening the question of validity of the trademark by asserting the defense that the mark was merely descriptive and thus unprotected). In such cases, the defendant is estopped from asserting the defense that plaintiff's trademark is invalid. Id. In this case, Defendants are asserting the defense that Plaintiff's mark is not valid ­ and presumably Defendants have never recognized that Plaintiff's name and likeness is a valid `mark'. As stated, the cases of MWS Wire and Beer Nuts are about defendants being estopped from asserting the defense that plaintiff's mark is invalid. Therefore, in this case Defendants are asserting that Plaintiff's mark in invalid while citing cases in which the courts conclusions rest on the fact that the defendants had previously recognized the validity of plaintiff's trademark. Defendants `estoppel' argument does not make sense pursuant to the cases cited in their Motion for Summary Judgment. Plaintiff never signed a `standard player contract' as Defendants assert. Plaintiff signed a

contract as a player in 1975 (and previous years) and an independent contractor agreement in 1993. (SOCF ¶ 74). Neither of these contracts gave Defendants the right to license Plaintiff's name and

likeness indefinitely and for any manner. (SOCF ¶ 74, 82, 168, 171-172, 201). All of the player contracts signed by the Plaintiffs involved in this litigation have different terms. Plaintiff has continued to assert the exclusive rights to license his name and likeness by entering into licensing agreements with other companies. (SOCF ¶ 118, 125, 147). Plaintiff has never before objected to Defendants licensing of his name and likeness because Plaintiff has never before been made aware of ANY other licensing Case 2:04-cv-00299-DGC -8Document 282 Filed 11/30/2005 Page 8 of 20

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agreement until Defendants' Response to Plaintiff's Motion for Summary Judgment. (SOCF ¶ 161162). For the foregoing reasons, Plaintiff's claims are not barred by the defense of estoppel/license. D. Plaintiff's Claims Are Not Barred by Laches. Defendants assert that Plaintiff's claims are barred by laches because Plaintiff unreasonably delayed in filing suit and Defendants were prejudiced by that delay. However, Plaintiff did not delay in filing this lawsuit and asserting his rights immediately after discovering Defendants' infringing activities. Because Plaintiff did not delay in filing suit, Defendants are not prejudiced. Plaintiff first became aware of Defendants and GTFM's actions in producing a clothing line displaying his name and likeness in or about the end of 2003. (SOCF ¶ 158). This happened when

Plaintiff witnessed many fans wearing the clothing at the ceremony in which Plaintiff was being inducted into the Basketball Hall of Fame where his player number "36" was retired. (SOCF ¶ 157). Then, on December 23, 2003, Plaintiff sent a letter to Defendants requesting any and all documentation on which they were relying that gave Defendants or any other entity authorization to use Plaintiff's name, image, likeness, number, notoriety, and goodwill. (SOCF ¶ 159). Defendants did not respond to the inquiry at all, which forced Plaintiff to file this lawsuit in early 2004. (SOCF ¶ 160). Therefore, it is clear that as soon as Plaintiff was aware of the infringement, he instituted legal action against Defendants. Defendants also claim that they have used Plaintiff's name and likeness "for decades" without objection by Plaintiff. However, Defendants fail to state the fact that prior uses of Plaintiff's name by the Defendants were completely unlike the sublicensing agreement undertaken by Defendants and GTFM. Defendants' use of Plaintiff's name and likeness on the clothing line was a complete violation of Plaintiff's rights and is not legal. In fact, outside of the HGI/GTFM sublicensing agreement,

Defendants have never used Plaintiff's name and likeness on a clothing line. At no time from October 15, 1975 through the actions that caused this litigation was any clothing, especially sportswear, being sold with the individual player names on it. (SOCF ¶ 161). Aside from the FUBU clothing line, HGI has not been involved in utilizing Plaintiff's name and likeness. (SOCF ¶ 162). Not even the clothing sold in the arenas at Harlem Globetrotters events contains Plaintiff's name and likeness. (SOCF ¶ 163). To Plaintiff's knowledge, the Globetrotters have never before inappropriately sublicensed or used his name and likeness. Therefore, Plaintiff never had a reason to complain to Defendants or any Case 2:04-cv-00299-DGC -9Document 282 Filed 11/30/2005 Page 9 of 20

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other company about the use of his name and likeness.

As soon as Plaintiff became aware of

Defendants and GTFM's illegal use of his name and likeness, Plaintiff immediately instituted legal action. For those reasons, a defense of laches cannot stand and therefore Plaintiff's claims are not barred by that defense. E. Plaintiff is Entitled to Damages Under the Lanham Act. (i) Evidence of Damages. Defendants argue that Plaintiff is not entitled to damages because he has "not asserted or produced evidence of any actual damages." (See Defendants' Motion for Summary Judgment at 17). As Defendants correctly stated in its Motion that the Lanham Act provides for actual damages, defendants' profits, and the costs of the action. A quick review of Plaintiff's expert report reveals that Plaintiff's expert report calculates actual damages and Plaintiff's entitlement to Defendants' profits. (SOCF ¶ 202). Defendants themselves assert that Plaintiff seeks the Globetrotters profits in the precise amount of $704,383. (See Defendant's Motion at 17). Plaintiff has produced ample evidence of damages and, as demonstrated below, is entitled to those damages upon prevailing on his claims. (ii) Willful Infringement. Defendants assert that Plaintiff cannot recover damages because Plaintiff cannot show that Defendants willfully infringed his mark. (See Defendants' Motion for Summary Judgment at 17-18). The determination of damages in a trademark infringement action is to be pursued in light of equitable considerations and the court must rely not merely on the legal conclusion of liability, but must also consider the nature of the infringing actions, including the intent with which they were motivated and the actuality, of any, of their adverse effects upon the aggrieved party. Lindy Pen Co., Inc., v. Bic Pen Corp., 982 F.2d 1400, 1404-1405 (9th Cir. 1993) (emphasis added). Where trademark infringement is deliberate and willful, the court has found that a remedy no greater than an injunction slights the public. Id. at 1405. The intent of the infringer is merely relevant on the issue of awarding profits and damages and the amount. Id. (emphasis added). Willful infringement carries a connotation of deliberate intent to deceive. Id. at 1406. Here Defendants use and licensing of Plaintiff's name was deliberate. Defendants were involved in a licensing agreement that produced clothing with Plaintiff's name and likeness emblazoned across it. Defendants did not use Plaintiff's name by accident ­ clothing bearing Plaintiff's name was the highest Case 2:04-cv-00299-DGC -10Document 282 Filed 11/30/2005 Page 10 of 20

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selling of all. (SOCF ¶ 141). Defendants deliberately did not give GTFM Plaintiff's contract, or any other of the Plaintiffs' contracts, even though Defendants had access to such contracts. (SOCF ¶ 169). Although Defendants did produce and attach one blank purported player contract to the HGI/GTFM licensing agreement, it was not the contract of a former player that was actually used in the clothing line. Defendants attempted to conceal their actions by mailing Plaintiff a check for funds allegedly received from Defendants' illegal licensing of Plaintiff's name and likeness. (SOCF ¶ 170). Plaintiff did not cash this check and coincidently, this check was only mailed once Defendants received information that Plaintiff discovered, and became extremely upset with Defendants' illegal use of his name and likeness. Defendants were motivated entirely by commercial profit and the damages to Plaintiff are clear. (SOCF ¶ 150-155). Defendants' motivation and intent to deceive are clear; and therefore, Defendants

infringement was willful. (iii) Causal Connection. Defendants argue that Plaintiff cannot recover damages because there is no "causal connection between the alleged infringement and the Globetrotter's profits." (See Defendants' Motion for Summary Judgment at 18-19). Defendants assert that Plaintiff has the burden of proving "both the fact of the damage and the amount of the damage." (See Defendants' Motion for Summary Judgment at 18, citing Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1408 (9th Cir. 1993). In the Lanham Act, and similar common law cases, plaintiff is not required to prove the amount of damages with mathematical certainty. U-Hall International, Inc v. Jartran, Inc., 601 F.Supp. 1140, 1150 (D. Arizona 1984), aff'd in part, rev'd in part on other grounds, 793 F.2d 1034 (9th Cir. 1986). Defendants cannot (or refused to) reliably quantify sales. (SOCF ¶ 150-155, 164). Mannie Jackson first crowed that it was a "100 million dollar" deal, then that it was a "60 million dollar deal." (SOCF ¶ 153, 155). The estimate of the total wholesale of all HGI merchandise and apparel, and the projected sales volume was only twenty million dollars. (SOCF ¶ 150-151). Defendants and GTFM refused to provide concrete evidence of total sales, profits, or sales by individual plaintiff. (SOCF ¶ 150-155, 164). In fact, Defendants are currently suing GTFM in New York based on GTFM failing to adequately disclose and calculate revenue of the clothing sales. Here the damages are clear even though the totals are not mathematically certain. The fact that the exact quantities, styles and countries of sales may never be known, common in the international garment industry, does not foreclose damages for Case 2:04-cv-00299-DGC -11Document 282 Filed 11/30/2005 Page 11 of 20

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Plaintiff. In this context, Plaintiff's entitlement to disgorgement of Defendants' profits should not be foreclosed because he encountered difficulties caused by Defendants and GTFM. Plaintiff has provided a reasonable basis for his damage calculations that 1) there were infringements, and 2) profits were made that should be disgorged. Now Defendants should bear the risk of any uncertainty. The 9th Circuit has declined to second guess a jury's verdict resulting in an allegedly speculative measure of damages (used the evidence of royalty on one postcard times total number of issues sold), stating that it is the defendant (Hustler) "that must bear the risk of uncertainty." Brewer v. Hustler Magazine, Inc., 749 F.2d 527 (9th cir. 1984). In this case, the damages for historical sales are reasonably documented. Plaintiffs' expert opines as to direct damages, not speculative future profits that Plaintiffs could have, or may have, enjoyed if they made their own deals with GTFM or someone else. It is clear that damages may be proved for a direct injury that a plaintiff can prove, as well as any lost profits plaintiff would have earned but for the infringement. See Lindy Pen Co., v. Bic Pen Corp., 982 F.2d 1400 (9th Cir. 1993). The Lindy Pen court also noted that proof of actual damage is often difficult. Id. Similarly, the 9th circuit has noted that California statutes provide for actual damages and any profits which require "proof only of the gross revenue"... "and the person who violated this section is required to prove his or her deductible expenses." Cal. Civ. Code § 3344(a) (1997), Solana v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002). Plaintiff is entitled to a disgorgement of Defendants' profits as a matter of law. It is now Defendants' burden to prove what amount, if any, of its gross revenues were not due to the misappropriation of Plaintiff's marks. J. Thomas McCarthy, The Right of Publicity and Privacy, §11.34 at 11-80 (2d Ed. 2002). Plaintiff has produced evidence that the HGI/GTFM apparel would not have sold `but for' Plaintiff's name being on it, i.e., that consumers likely bought the apparel because it contained Plaintiff's name and likeness. Plaintiff has set forth a plethora of evidence that shows consumers likely purchased the clothing because it bore his name and likeness. Meadowlark Lemon is the single most recognized Harlem Globetrotter. (SOCF ¶ 145). The clothing bearing Plaintiff's name, likeness, and player number sold very well, and was the highest selling of all players. (SOCF ¶ 141). All people deposed in this case mentioned Meadowlark Lemon as the most famous, or one of the most famous, Globetrotter. At his deposition Larry Blenden, an executive of GTFM, named Plaintiff as one of the -12Document 282 Filed 11/30/2005 Page 12 of 20

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most famous past Harlem Globetrotters players. (SOCF ¶ 142-145). When Mr. Jackson purchased the Globetrotters, he considered Meadowlark Lemon to be a legend of the Harlem Globetrotters. (SOCF ¶ 143). The best-known Globetrotters ever are Meadowlark Lemon and Marques Haynes and

Meadowlark Lemon is on the "Legends" wall at the Globetrotters office. (SOCF ¶ 144). It is clear that consumers likely purchased the FUBU clothing because it bore Plaintiff's name and likeness. Therefore, Plaintiff has established that the HGI/GTFM apparel would not have sold but for his name and likeness being on it. (iv) Attorney's Fees. Defendants assert that Plaintiff is not entitled to attorney's fees. (See Defendants' Motion for Summary Judgment at 19). Defendants also state that attorney's fees are awarded in trademark cases where the Defendant acted maliciously, fraudulently, deliberately, or willfully. (Id., citing Earthquake Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1216 (9th Cir. 2003) (emphasis added). As Plaintiff demonstrated in Section III.E(ii), supra, Defendants' actions were willful. Therefore, Plaintiff is entitled to attorney's fees. IV. PLAINTIFF'S RIGHT OF PUBLICITY WAS VIOLATED. Defendants assert that it is unclear whether Arizona recognizes a claim for the right of publicity in common law, and if it is recognized, Plaintiff has not proven the required elements. However, it is clear that Arizona recognized a common law right of publicity claim in Pooley v. National Hole-In-One Association, 89 F.Supp.2d 1108 (D.Ariz. 2000), as Defendants cite in their Motion. In Pooley, the District Court of Arizona clearly set forth the elements that a Plaintiff in Arizona must establish to be successful on a common law right of publicity claim. Id. Not only does Arizona recognize the claim of common law right of publicity, but it is clear that Plaintiff has met all of the elements. First, Defendants used Plaintiff's identity by emblazoning (SOCF

Plaintiff's name and likeness across clothing that was manufactured and sold by the company.

¶ 141). Defendants clearly profited from the sale of clothing bearing Plaintiff's name and/or number. (SOCF ¶ 150-155). Net sales on men's and boy's clothing line alone for the first two years was $22.6 million. (SOCF ¶ 152). Defendants did not have the right to use Plaintiff's name and likeness in the HGI/GTFM clothing line under Plaintiff's old contract. (SOCF ¶ 168). Defendants did not contact Plaintiff directly to get his Case 2:04-cv-00299-DGC -13Document 282 Filed 11/30/2005 Page 13 of 20

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consent to use his name and likeness on the clothing. However, Mannie Jackson continued to insist that he had the right to use all former players' names and likenesses in perpetuity, pursuant to a (nonexistent) `standard player contract.' (SOCF ¶ 169). Additionally, Plaintiff has been injured by Defendants' use of his name and likeness. Plaintiff was not compensated for the use of his name and likeness although, had he consented to such use by entering into his own endorsement deal, Plaintiff would have been entitled to compensation. Defendants kept all profits that Plaintiff would have been entitled to. (SOCF ¶ 147, 168, 171-172). Additionally, by entering into the licensing agreement, Defendants effectively took away Plaintiff's right to choose to endorse another product through his celebrity status, as Plaintiff is currently involved in licensing his name and likeness to endorse other products. (SOCF ¶ 147). Plaintiff is still involved in the sports community through his ministries and charities, and produces his own products containing his name which Defendants directly competed with. (SOCF ¶ 147-148). Lastly, as explained in Section III.C, supra, Plaintiff did not license to Defendants' the right to use his name and likeness as done in the HGI/GTFM clothing line. (SOCF ¶ 168). Therefore, Plaintiff

can sustain a right of publicity claim against Defendants. Also, as explained in Section III.D, supra, Plaintiff is not barred by laches because he immediately objected to the HGI/GTFM licensing deal and apparel as soon as becoming aware of such. (SOCF ¶ 158-160). Since Plaintiff has met all of the elements required to prevail on a common law right of publicity claim, not only would Plaintiff's claim stand, but in fact Plaintiff would be entitled to a grant of summary judgment in his favor on this claim. V. DEFENDANTS PLACED PLAINTIFF IN A FALSE LIGHT AND INVADED HIS PRIVACY. In their Motion, Defendants cite the case of Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781 (1989), as the controlling law in Arizona on false light invasion of privacy claims. (See Defendants' Motion for Summary Judgment at 21). In that case, the Court concluded that one who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for the invasion of his privacy if: 1) the false light in which the other was placed would be highly offensive to a reasonable person, and 2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Godbehere,162 Ariz. at 338, 783 P.2d at 784. A false light cause of action arises either -14Document 282 Filed 11/30/2005

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when something untrue has been published about the individual or when the publication of true information creates a false implication about the individual. Id. at 341, 783 P.2d at 787 (emphasis added). When Defendants used Plaintiff's name on its clothing line for commercial profit, Defendants created a false implication about Plaintiff. Specifically, that he endorsed the clothing line and that he gave permission to Defendants to use his name on the clothing line. By featuring Plaintiff's name and likeness on the clothing line, Defendants placed Plaintiff in a false light by holding out to the reasonable person that Plaintiff was involved in the commercial exploitation of his name and likeness purely for profit. Instead, Plaintiff dedicates his life to his ministry and charities and provides free basketballs, autographs, and shirts to the needy each year. (SOCF ¶ 148). Defendants' conduct would be offensive to the reasonable person because Defendants literally `stole' Plaintiff's identity by using his name and likeness when Defendants did not have the authority to do so. By creating a false implication about Plaintiff that a reasonable person would find offensive, Defendants became liable to Plaintiff for false light invasion of privacy. Plaintiff has established that he has met all of the elements required to succeed on a claim for false light invasion of privacy. Plaintiff's claim must not be dismissed, and in fact, Plaintiff is entitled to summary judgment on this claim. VI. DEFENDANTS WERE UNJUSTLY ENRICHED. To recover damages for unjust enrichment, the party must prove the following elements: 1) the other party was unjustly enriched at the expense of claimant; 2) the claimant provided a benefit to the other party; and 3) the claimant conferred this benefit under circumstances that would render inequitable the other parties retention of the benefit without payment. Western Corrections Group, Inc. v. Tierney, 208 Ariz. 583, 590, 96 P.3d 1070, 1077 (2004). Defendants had no right to use, or license for use, Plaintiff's name and likeness as Defendants and GTFM did by entering into the contract. (SOCF ¶ 168, 171). Plaintiff was and is the only person who has the authority to use and consent to the use of his name and likeness in connection with any product. (SOCF ¶ 147, 171-172). However, Defendants exploited Plaintiff's protected right to the exclusive use of his name and likeness as if it were a trademark, by contracting with GTFM to place Plaintiff's name on a clothing line. Plaintiff gained his celebrity status and entry into the Basketball Hall of Fame through his own hard work and sacrifices. (SOCF ¶ 157). Defendants exploited Plaintiff's celebrity and goodwill status, Case 2:04-cv-00299-DGC -15Document 282 Filed 11/30/2005 Page 15 of 20

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and profited by doing so. It is through Plaintiff's celebrity status that Plaintiff conferred a benefit on Defendants. (SOCF ¶ 141-145). It is also through Plaintiff's status in the community that Defendants were able to make a profit on the clothing that displayed Plaintiff's name and likeness. Therefore, Plaintiff provided a benefit to Defendants. Plaintiff conferred this benefit to Defendants under circumstances that would render inequitable Defendants' retention of the benefit without payment because it is Plaintiff, not Defendants, that is entitled to the profits from the sale of the clothing bearing his name and likeness. (SOCF ¶ 147, 168, 171-172). As explained many times previously, Defendants had no authority to use Plaintiff's name and likeness. (SOCF ¶ 171-172). Therefore, it would be inequitable for Defendants to retain the benefit that Plaintiff conferred on it. For that reason, Plaintiff has a valid claim for unjust enrichment and since Plaintiff has met all of the elements necessary to prevail on this claim, it is Plaintiff who is entitled to summary judgment. VII. PLAINTIFF LEMON HAS BEEN DEFAMED. During discovery Plaintiff has repeatedly disclosed documents and told Defendants which statements made by Defendants went directly to the defamation claim. (SOCF ¶ 133, 173-174, 177). Additionally, Plaintiff has set forth sufficient evidentiary support to show that Plaintiff has been defamed as a matter of law and therefore, is entitled to summary judgment on this claim. A

defamation action compensates damage to reputation or good name caused by the publication of false information. Godbehere, 162 Ariz. at 341, 783 P.2d at 787. To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation. Id. Mannie Jackson is the CEO and owner of HGI. (SOCF ¶ 178). 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. (SOCF ¶ 173174). Also, in press interviews for the book, Mannie Jackson made defamatory statements about Plaintiff. (SOCF ¶ 174). This book is sold on the Harlem Globetrotters website. (SOCF ¶ 175). Therefore, Mannie Jackson has received a monetary benefit from this book and the defamatory statements made against Plaintiff. (SOCF ¶ 176). Additionally, in a statement that was published in Case 2:04-cv-00299-DGC -16Document 282 Filed 11/30/2005 Page 16 of 20

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the Arizona Republic on January 17, 2004, Mannie Jackson made a defamatory statement about Plaintiff. (SOCF ¶ 177). Specifically, while talking about Meadowlark forming his own team instead of re-joining the Harlem Globetrotter's, Mannie Jackson stated in the Arizona Republic Article that Plaintiff "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." (SOCF ¶ 177). However, all of the aforementioned statements are false, as Plaintiff did not drink or do drugs, did not decide to start his own team and not rejoin the Globetrotter's because he "wanted to be the show" or "wanted to be the star." Mannie Jackson's statements and defamatory conduct were made on behalf of the community and benefited the community. (SOCF ¶ 180). Plaintiff did not drink or use drugs and does not have a reputation for selfishness, as Mannie Jackson stated in the book and Arizona Republic article. Plaintiff's reputation and good name have been damaged by Mr. Jackson's publication of false information about Plaintiff and therefore, Plaintiff is entitled to compensation as a matter of law. See Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). VIII. DEFENDANTS DID NOT RESPOND TO PLAITNIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIM. Defendant's failed to answer Plaintiff' Motion for Summary Judgment regarding this issue; therefore, Plaintiff is entitled to summary judgment. Even though Defendants wrongfully filed a motion for sanction on the counterclaim, they ignore the issue in Plaintiff's motion. Furthermore, Defendant's state in their reply to their motion for sanctions filed on November 28, 2004, "HGI acknowledges that the counterclaim may be moot since Plaintiff Lemon has apparently ceased the infringing conduct that was the basis of HGI's counterclaim." See Defendant Harlem Globetrotters International, Inc. et. al. Reply to Plaintiff Lemon's Response to Defendant's Motion for Sanction Under Fed. R. Civ. P. 11, p. 5. Since there is no issue as to a material fact, Plaintiff is entitled to summary judgment on the counterclaim, and the counterclaim should be dismissed. IX. CONCLUSION Defendants are not entitled to summary judgment. However, Plaintiff has demonstrated that he will prevail on his claims as a matter of law and therefore he is entitled to summary judgment against Defendants. -17Document 282 Filed 11/30/2005

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DATED this 30th

day of November 2005. ROSENQUIST & ASSOCIATES

By:

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

Case 2:04-cv-00299-DGC

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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 November 30th , 2005, a true and correct copy of the foregoing PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANTS HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON'S MOTION FOR SUMMARY JUDGMENT 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, -19Document 282 Filed 11/30/2005

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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 30th day of November 2005, at Phoenix, Arizona.

/s/Florence M. Bruemmer Florence M. Bruemmer

-20Document 282 Filed 11/30/2005

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