Free Statement - District Court of Arizona - Arizona

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

MEADOWLARK LEMON, a married man, Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC Plaintiff,

12 13 14 15 16 17 18 19 20 21 22 23 24 ROBERT "SHOWBOAT" HALL, MARQUES 25 26 Plaintiffs, HAYNES and JAMES "TWIGGY" SANDERS, FRED "CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" THORNTON, vs.

PLAINTIFFS' STATEMENT OF FACTS PURSUANT TO LOCAL RULE 1.10(1)(1) IN SUPPORT OF PLAINTIFFS' RESPONSE TO HARLEM GLOBETROTTERS INTERNATIONAL, DEFENDANTS' MOTION FOR SUMMARY INC., an Arizona corporation; HARLEM JUDGMENTAND STATEMENT OF GLOBETROTTERS INTERNATIONAL CONTROVERTED FACTS ASSERTED BY FOUNDATION, INC., an Arizona corporation; FUBU 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.

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1 vs. 2 3 4 5 6 7 8 9 10 HARLEM GLOBETROTTERS INTERNATIONAL, 11 INC., an Arizona corporation, 12 13 vs. 14 MEADOWLARK LEMON, a married man, 15 16 17 18 PLAINTIFFS, FRED "CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" 19 THORNTON, ROBERT "SHOWBOAT" HALL, MARQUES HAYNES AND JAMES 20 21 22 23 24 25 26 27 28 "TWIGGY" SANDERS (hereinafter collectively the "PLAINTIFFS"), by and through their attorneys and pursuant to L.R.Civ. 1.10(1)(1) of the United States District Court for the District of Arizona, hereby submit their Statement of Facts in Response to the Motions for Summary Judgment of Harlem Globetrotters International, Inc. and Mannie and Catherine Jackson (hereinafter collectively with other party Defendants as "Defendants" or individually "HGI") and GTFM, LLC (hereinafter collectively with other party Defendants as "Defendants" or individually "FUBU"). Counter-defendant. Counter-claimant, 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, GTFM of Orlando, LLC; and GTFM, LLC, a New York limited liability company doing business in Arizona, Defendants.

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There are genuine issues of disputed fact. Plaintiffs herewith specifically address and dispute facts asserted by HGI and facts asserted by FUBU. See Plaintiffs' Dispute of Facts Asserted by HGI, and Plaintiffs' Dispute of Facts Asserted by FUBU. PLAINTIFFS' STATEMENT OF FACTS PURSUANT TO L.R.Civ. 1.10(1)(1) 1) Plaintiffs were variously employed as players and player-coaches for Harlem Globetrotters

6 entities from 1946 (Haynes) through 1991 (Sanders), most having terminated their employment 7 8 9 10 11 12 13 14 15 16 "minima" and supplemental to, and superceding, the individual players contracts (Exhibit 2B, 17 CBA Article 2.1). The term was through August 31, 1986, with annual automatic renewals. (Id., 18 19 20 21 22 23 24 25 26 (Schedule 2.1(i), to Exhibit 5D: Bates Stamp #1386), and a schedule of trademarks and 27 "Intellectual Property Rights" (Schedule 2.1F to Exhibit 5D, Bates Stamp #1368). Neither of 28 Article 16.1) 3) Harlem Globetrotters, Inc. (unrelated to Defendant Jackson's HGI) bought the Harlem Globetrotters from International Broadcasting Corp ("IBC"), a corporation that filed for bankruptcy on August 30, 1991. (Exhibit 5A). 4) Jackson formed HGI in 1993 and entered into the Asset Purchase Agreement of August 1, 1993 (Exhibit 5D, Asset Purchase Agreement). 5) The Asset Purchase Agreement includes a schedule of "Player and Personnel Contracts" decades before the License Agreement of 2002 (FUBU Motion p. 6, lines 8-15) citing to Plaintiffs' depositions), wherein HGI granted FUBU a license to manufacture and distribute merchandise. 2) The United Basketball Players Association (hereinafter "UBPA"), organized to represent players for the Harlem Globetrotters, entered into several Collective Bargaining Agreements (CBA's), including agreements in 1977 and 1983, with various amendments pursuant to which Harlem Globetrotters, Inc. (a corporate name utilized by various owners) agreed to pay royalties on merchandise sales to the players (Exhibit 2, CBA Article 14.12), and provided rights considered

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these schedules or the Agreement list Plaintiffs' names or contracts, but specifically identify other players' contracts (i.e. Lou Dunbar #7b of Schedule 2.1(i)). 6) Plaintiffs never entered into any agreement with HGI at all orally or in writing, nor were Plaintiffs contacted for their authority. (Exhibit 1A, Jackson Tr.204, Exhibit 1D, Vaughn Tr.62, stating "I'm certain that they were not asked", Exhibit 1K, Neal Tr. 168, Hayes Tr. 57).

6 7) The parties to the Agreement and their attorneys testified that Plaintiffs' names and contracts 7 8 9 10 11 12 13 14 15 16 player's names, including Plaintiffs', which were used as marketing tools. (Exhibit 12). 17 11) FUBU representatives never conducted any due diligence as to Plaintiffs' rights, and relied solely 18 19 20 21 22 23 24 25 26 in looking at 600 plus contracts stuffed away some place". (Exhibit 1A, Jackson Tr.262). 27 28 on the representations of Jackson (Exhibit 1A, Jackson Tr.261, Weisfeld Tr.68, stating contracts were "boxed up" and "not accessible" "due to the bankruptcy.") 12) HGI represented to FUBU in the License Agreement that "each such player has granted HGI in perpetuity the rights ... and the unlimited right to sublicense such rights to third parties". (FUBU Motion p.4, 1.8, Sacks Decl. Exhibit A, Section 1.9(a) (viii) 13) FUBU asked for an indemnity in their contract with HGI because HGI represented to FUBU that all of the players contracts were "standard" player contracts and FUBU was "not interested were never brought up during the negotiations and execution of the Agreement (Horton Tr.29, 30). 8) FUBU (as GTFM, LLC), entered into a License Agreement with HGI on June 1, 2002. Plaintiffs' names are not specifically mentioned as "Licensed Property." (FUBU Motion p.3, 1.20) (Sacks Decl. Exhibit A, Section 1.3(b)). 9) The clothing line bearing Plaintiffs' names and jersey numbers have been marketed offered for sale and sold in interstate commerce in the United States, and overseas. (Exhibit 9C). 10) Much of the Harlem Globetrotters apparel sold by FUBU had hang tags listing the specific

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14) Only a sample player contract was attached to the contract between FUBU and HGI, and FUBU never expressed any concern as to its enforceability as to Plaintiffs. (Exhibit 1C, Lenihan, Tr.20-21). 15) Simply because Mannie Jackson was the owner of the Globetrotters and was former player, FUBU relied on Mannie Jackson's assertions that every player singed the same contract and

6 every player had given up his rights to HGI to use his name (Exhibit 1F, Weisfeld Tr.35-36). 7 8 9 10 11 12 13 14 15 16 approval of the FUBU clothing line. (Exhibit 1E, Aurum Tr. 23-24). 17 20) Aurum is CEO of FUBU the collection LLC. (Exhibit 1E, Aurum Tr.7). Aurum is in charge of 18 19 20 21 22 23 24 25 26 Gallo Tr. 1-19). 27 28 marketing, distribution, and product placement. Id. 21) "Some" of the FUBU/HGI apparel contained Plaintiffs' trademarks (FUBU Motion, p.5, L.4) Weisfeld Decl. Paragraph 5). 22) Approximately 45,000 units of garments bearing Plaintiffs' names were reported by HGI for a limited period ending November 2003 (Exhibit "9 (A)", report of FUBU sales), (FUBU states the number is "insignificant" at fn 1, p. 5 FUBU Motion). Plaintiffs have recently confirmed that overseas sales have occurred that FUBU did not report, (Exhibit 1O, Phipps Tr. 58, 59; 1P 16) Larry Blenden does not recall seeing any player contracts that were signed by the Plaintiffs. (Exhibit 1G, Blenden Tr.36-37) 17) No one from FUBU contacted any player directly, especially since it was warranted and represented to FUBU that HGI already had the right to use the players' names and likenesses (Exhibit 1G, Blenden Tr.47-48, Exhibit 1Q, Haynes Tr.92). 18) Before entering into the agreement with FUBU, HGI did not contact Plaintiffs or any other former players or seek out their permission in any way. (Exhibit 1A, Jackson Tr.204). 19) Aurum did not make any effort to contact any of the Plaintiffs about their permission or

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23) Michael Syracuse is the chief financial office of HGI and is responsible for financial matters and accounting records of HGI (Exhibit "1 (B)" p. 9 and 11). 24) Syracuse wrote Plaintiffs on October 31, 2003 and stated "Mannie approved a portion of the net sales to go directly to players. This program was established as a good will gesture. You are not entitled to any payments." (Exhibit 9B). But, checks were written to Plaintiffs for FUBU sales

6 (Exhibit 9AB). 7 8 9 10 11 12 13 14 15 16 27) Jackson wrote to the former players (including Plaintiffs) on September 4, 2003 that the total 17 would be "approximately $30,000.00" (Exhibit 9C). 18 19 20 21 22 23 24 25 26 had been helped by the foundation, nor did he know what the Foundation actually does (Exhibit 27 1D, Vaughn Tr.6-7). 28 28) The FUBU sales reported to HGI as of November 2003 were actually $22,661,645.50 (Exhibit 9D). 29) Revenues from sales of FUBU merchandise bearing Plaintiffs' names went to Harlem Globetrotters International Foundation, Inc. (Exhibit 9AB). 30) Jackson stated that the Foundation helped former players experiencing hardships but could not name a single former player that he had helped (Exhibit 1A, Jackson Tr.198, 199). 31) Governor Vaughn, head of alumni affairs for HGI could not name a single former player who 25) Jackson testified that he stated that the FUBU deal was a "100 million dollar" deal in an ESPN interview and that the reference in the book "Spinning the Globe" to $60 million in sales was accurate (Exhibit 1A, Jackson Tr. p. 121, Exhibit 7). 26) Plaintiffs were never paid a dime under the License Agreement before Plaintiffs sent a demand letter on September 29, 2003 (Exhibit "11"). Then, Plaintiffs received a check for 8% of HGI's 8% royalty while being told "you are not entitled to any money" (Exhibit 9A), Jackson letter to Plaintiffs). The FUBU licensing agreement was actually for 10% of the first $10 million (Exhibit 9D, Article II).

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32) Vaughn has been employed by Jackson since 2000 (Exhibit 1D, Vaughn Tr.5). 33) Plaintiffs never agreed to allow their names to be used to raise money for Jackson's Foundation (Exhibit 1L, Haynes Tr.107-108, and p. 98) and don't know what it does. 34) "Curly" Neal's last player contract terminated 1989, and was with IBC, owned by IBC and governed by the laws of Delaware (Exhibit 3A, page 1, 2, and paragraph 7).

6 35) Marques Haynes' last player contract terminated 1980, and was with Harlem Globetrotters, Inc., 7 8 9 10 11 12 13 14 15 16 38) "Gator" River's last player contract terminated 1985, and was with Harlem Globetrotters, Inc., 17 owned by Harlem Globetrotters, Inc. and governed by the laws of California (Exhibit 3F, ¶2, p. 18 19 20 21 22 23 24 25 26 41) Aside from the FUBU clothing line and some bobble head dolls, HGI has not licensed or 27 utilized the Plaintiffs' names and likenesses (Exhibit 1A, Jackson Tr.249-250). 28 1, and ¶1b). 39) "Twiggy" Sanders last player contract terminated 1992, and was with Harlem Globetrotters, Inc., owned by IBC and governed by the laws of Minnesota (Exhibit 3E, ¶2, p. 1, and ¶17). 40) Since the inception of Plaintiffs' relationships with various "Harlem Globetrotters" entities, Plaintiffs have received various payments for endorsements, merchandise, appearances and cartoon appearances while employed under the player contracts (Exhibit 1L, Rivers Tr.102, 1K Neal Tr.168). owned by Harlem Globetrotters, Inc. and governed by the laws of Illinois (Exhibit 3B, p. 1, p. 1, and ¶20). 36) Showboat Hall's last player contract terminated 1974, and was with Harlem Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of Illinois (Exhibit 3C, ¶2, p. 1, and ¶1b). 37) "Big D" Dallas Thornton's last player contract terminated in 1982, and was with Harlem Globetrotters, Inc., owned by Harlem Globetrotters, Inc. and governed by the laws of California (Exhibit 3D ¶2, p. 1, and ¶1b).

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42) Not even the clothing sold in the arenas at Harlem Globetrotters events contains Plaintiffs' name and likeness (Exhibit 1A, Jackson Tr. p. 259). 43) Retailers are still selling the Platinum FUBU Harlem Globetrotters clothing line bearing Plaintiffs' names (Exhibit 1O, Phipps Tr. 19,58,59,76,83, and 1P Gallo Tr. 1-19). 44) Haynes contract states that it may not be assigned without his prior written consent (paragraph

6 18) and that the employer rights to use his name may be used for promotion, but only "with 7 8 9 10 11 12 13 14 15 16 appearances, including $30.000 for same in Rivers last year (1985) because "that has always been 17 the position that we've been under." (Exhibit 12, Rivers p.101-102 and Exhibit 10, Rivers 18 19 20 21 22 23 24 25 26 49) HGI has only told some Plaintiffs to cease using "Harlem Globetrotters" uniforms in 27 conjunction with Plaintiffs' appearances. (Exhibits 20 and 23) 28 Letters). Other Plaintiffs were paid for merchandise in addition to salaries in player contracts (Neal Testimony at Exhibit 1K, p. 175). 48) Current HGI employee coach Lou Dunbar testified that if there were additional sales of FUBU clothes bearing his name he believes he should be paid by HGI (Exhibit 1M, Dunbar Tr.96) Dunbar was also on the UBPA negotiating committee that secured additional merchandising rights supplemental to individual contracts (Exhibit 1A, p.37-41) and there is no evidence that formal actions was ever taken to disband the UBPA (Id., p. 45). respect to commitments made by HGI prior to such termination" and for "the same uses they were put to prior to such termination." (Exhibit 3B ¶15(a), and 1Q Haynes Tr.102). 45) Neal's contract states that rights granted to "HG" are only for the term of the contract (¶9) and that Neal will receive 75% of "non-Globetrotter" services (Exhibit 3A, ¶11 ). 46) The publicity provisions in player contracts are coupled with obligations to appear, interview, etc. ­ obligations that terminated when the contracts terminated (i.e. Exhibit 3E, Sanders ¶12, Rivers 3F, ¶12a). 47) Rivers consistently received payments for merchandise (i.e. Converse shoes) endorsements and

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50) The player contracts of Sanders (Ex. 1( ), specifically reference the Collective Bargaining Agreement and its terms to those of the player contract. 51) Plaintiffs conceded that the use of their pictures was allowed by oral agreement, player contracts and the Collective Bargaining Agreement, but that treatment of merchandise endorsement was different. (Exhibit "32", Rivers Affidavit at 21Exhibit 33 Thorton Affidavit at 15).

6 52) Plaintiffs have located, verified, and scheduled infringing garments located after a limited 7 8 9 10 11 12 13 14 15 16 garments would have some tag". (Exhibit 1F, Weisfeld Tr.60). 17 55) These hangtags bear Plaintiffs' names and were attached to garments bearing Plaintiffs' names, 18 19 20 21 22 23 24 25 26 27 28 numbers and likenesses. (Exhibit "13", Phipps Affidavit). 56) "Legends of the Hardwood" hangtags were also attached to FUBU garments not otherwise bearing Plaintiffs' names or any other players' names, numbers or likenesses. (Exhibit 13 (A), Phipps Affidavit). 57) "Legends of the Hardwood" hangtags were attached to FUBU garments bearing "Legends" player names other than Plaintiffs. (Exhibit 13, Phipps Affidavit, Ex. A39: Hangtag on "Goose" Tatum shorts, Ex. A14: Hangtags on "Geese" Ausbie "35" jersey). investigation. There are numerous exhibits. (Exhibit 13, Phipps Affidavit, and the Schedule of Merchandise- A). 53) FUBU designed, manufactured and sold garish dresses bearing Plaintiffs' names and numbers. "Rivers" and "11" are on a bizarre dress (Exhibit 13A, Phipps Affidavit #55), and "Twiggy" and "42" appear on a long yellowish dress, (Exhibit 13A, Phipps Affidavit #79). 54) FUBU designed, manufactured and used two hangtags entitled "Legends of the Hardwood" to market Globetrotters clothing. (Exhibit 12). Some FUBU CAD'S (Computer Assisted

Drawings) clearly show hangtags. (Exhibit 24). Weisfeld stated "all Harlem Globetrotters

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58) Plaintiffs have personal knowledge that consumers are actually confused about Plaintiffs being associated with or endorsing HGI/FUBU products. (Exhibit "33", Thorton Affidavit at 10-13) Exhibit 32, Rivers Affidavit 10-14 59) Plaintiffs have never signed any agreements with HGI. Hayne's player contract was not

assignable. (Exhibit 1Q, Haynes Tr.102). There were no rights in HG (or HGI) after contracts 6 expired. (Exhibit 1( )Haynes Tr.57). Nothing signed ever with HGI by Sanders (Exhibit 1( ) at 7 8 9 10 11 12 13 14 61) 15 16 17 18 19 of one's relative position. FUBU executive Aurum testified that he considered $20 million in sales to be a 20 "failure", "not a success". (Exhibit 1E, Aurum Tr.43). FUBU royalty reports confirm that the $10 million 21 22 23 24 25 26 27 28 62) SOF¶ 21: GTFM did not enter into the licensing agreement blindly. GTFM was aware that HGI had been using and licensing the rights to the names and likenesses of Plaintiffs for "decades" and was not aware of any objection. mark was exceeded. (Exhibit 9). SOF¶ 9: Footnote 2 on insignificant number of styles containing Plaintiffs' likenesses and or images were manufactured and or sold. CONTROVERTED FACTS ASSERTED BY FUBU 127). 60) Plaintiffs never received any calls for Mannie Jackson about the FUBU deal. (Exhibit 1(Q), Haynes Tr.96).

What is "insignificant" to FUBU may be the "significant" to Plaintiffs. For this reason section 43(a) of the Lanham Act gives the Court discretion to, not only measure damages as profits, but exercises e discretion and impose damages up to three times the amount of actual damages. "Insignificance" is a matter

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GTFM did, however, enter into the license agreement with blinders on. These highly sophisticated Manhattan garment lawyers made no effort to ascertain the true right to Plaintiffs. Weisfeld testified that no contracts were available due to the bankruptcy (Exhibit 1F, Weisfeld Tr.68). Weisfeld testified that he never saw any contracts. (Id.) The Licensing Agreement is clear that SOME former players were excluded (i.e. Wilt Chamberlain and Magic Johnson) (Exhibit 6). Weisfeld is a lawyer. (Id at 62).

6 7 8 9 10 11 no agreements of any kind between Plaintiffs and HGI that were attached to the Licensing Agreement. 12 (Exhibit 1Q, Haynes Tr.96, Licensing Agreement). 13 14 15 64) 16 17 18 19 20 21 22 23 24 25 26 27 28 This type of use was approved by Neal and is consistent with Neal's last 1988 contract and the Collective Bargaining Agreement, which defines such uses as "not covered merchandise" (Exhibit 2(A)(B), Article 14.12. 65) SOF¶ 36: Neal's name and/or likeness appeared in the Globetrotters season programs, books, and posters: None of the Agreements referenced in this Statement of Fact involve Plaintiffs. They are irrelevant. SOF¶ 25: Other agreements were attached to the Licensing Agreement involving Walt Disney: There were no contracts involving Plaintiffs attached to the Licensing Agreement. Worse, there were 63) SOF¶ 24: Attached as Exhibits to the Licensing Agreement "there are several contracts in which the Globetrotters licensed the rights to use the names of their players".

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66)

SOF¶ 39: Neal was featured on television, including the Wide World of Sports and the Popcorn machine:

Yes, and Neal was paid for this. The Harlem Globetrotters specifically agreed on September 1, 1977 to the payment for Wide World of Sports appearances and residual payments for reruns of the program. (Exhibit 2(A)(B), Collective Bargaining Agreement Wide World of Sports Writer 9/1/77).

67)

SOF¶ 40: Neal's likeness was used in "Scooby-Doo", "Super Globetrotters", and "Godzilla Globetrotters Adventure".

Neal was paid for these appearances. See above at 38-39.

68)

SOF¶ 41: Neal "accepted a check" from Mannie Jackson for HGI'S marketing bobblehead dolls with his likeness:

Yes. Such as proof that this type of merchandise was the type for which Neal, and Plaintiffs, expected payment. Jackson, in this instance at least honored the obligation.

75)

SOF¶ 45: Neal was paid for the FUBU/ HGI apparel by the Harlem Globetrotters:

Neal was only paid after his counsel demanded an accounting and authority from HGI and FUBU. 23 (Exhibit 11). Even though HGI and their counsel were on notice that Neal was represented by an attorney, 24 25 26 27 28 they sent a check and letter to Neal directly. (Exhibit _9_ HGI letter to Plaintiffs with Check and FUBU accounting).

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76)

SOF¶ 47: Haynes did not ask HGI to stop using his name on the bobblehead dolls:

See 46 above. Also, HGI never asked Haynes to cease using his name and likeness. (Exhibit 1Q, Haynes Tr.11).

77)

SOF¶ 50: Haynes has not endorsed any products or services since he left the Globetrotters:

Haynes has still a basketball celebrity and is great demand for appearances, charitable events. 7 (Exhibit 1Q, Haynes Tr.13). 8 9 10 11 12 Haynes was only paid after his counsel demanded on accounting and authority from HGI and FUBU. Even 13 though HGI and their counsel were on notice that Haynes was represented by an attorney, they sent a check 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 80) SOF¶ 62: The Globetrotters used River's name and likeness to promote merchandise, including Converse, etc: 79) SOF¶ 58: The Globetrotters sent Hall a check for the FUBU/ HGI apparel: and letter to Haynes directly. (Exhibit _11_, Plaintiffs letter to HGI, Exhibit _9 HGI letter to Plaintiffs with Check and FUBU accounting). 78) SOF¶ 52: Haynes received compensation from the Globetrotters for the FUBU/ HGI apparel:

Hall was only paid after his counsel demanded an accounting and authority from HGI and FUBU. Even though HGI and their counsel were on notice that Hall was represented by an attorney, they sent a check and letter to Hall directly. (Exhibit _11_, Plaintiffs letter to HGI, Exhibit _9_ HGI letter to Plaintiffs with Check and FUBU accounting).

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1 2 3 4 5 81)

The assertion fails to state that Rivers was paid for endorsements. (Exhibit _10_).

SOF¶ 66: Rivers received a check from the Globetrotters for the FUBU/ HGI apparel:

Rivers was only paid after his counsel demanded an accounting and authority from HGI and FUBU. 6 Even though HGI and their counsel were on notice that Rivers was represented by an attorney, they sent a 7 8 9 10 11 12 13 14 15 The postcard and program uses were permitted and unpaid whereas the appearances on the 16 Popcorn Machine, White Shadow, and Gilligan's Island were paid as "covered merchandise" in the CBA. 17 18 19 20 21 22 23 24 25 26 27 28 84) SOF¶ 82, 83, & 84: FUBU'S comments regarding Plaintiffs' Expert Report are not relevant. 83) SOF¶ 81: Sanders received compensation from HGI for the FUBU/ HGI apparel: Sanders received a check only after his attorney demanded an accounting authority from HGI. (Exhibit _11_ Plaintiffs Letter to HGI, Exhibit _9_ HGI check to Sanders). (Exhibit 2(A)(B)). 82) SOF¶ 68 & 69: Globetrotters used Thornton's name and likeness on programs, postcards, television shows, like the Popcorn Machine, The White Shadow, and Gilligan's Island: check and letter to Rivers directly. (Exhibit _11 , Plaintiffs letter to HGI, Exhibit _9 HGI Letter to Plaintiffs with Check and FUBU accounting).

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85)

SOF¶ 87: Plaintiffs have not submitted any consumer testimony as to public recognition and have done no investigation or surveys.

Plaintiffs investigated infringements (Ex 13).

86) 8 9 10 11 12 13 14 15 Memorandum). 16 17 18 19 20 21 87)

SOF¶ 90: Plaintiffs have no evidence that consumers bought or were likely to buy any FUBU/ HGI apparel because of Plaintiffs' names, numbers, or likenesses appearing there on.

FUBU's decision to place Plaintiffs' names, numbers, and likenesses on FUBU apparel and on hangtags to induce purchases. The burden is now shifted to FUBU to show that there is no evidence that the decision that FUBU made to exploit Plaintiffs either induced, or was likely to induce, consumers to buy FUBU's product. (See Exhibit 13(A) (10), and Plaintiffs' discussion of this legal issue in Plaintiffs'

SOF¶ 91: Plaintiffs' Expert does not attempt to establish consumer recognition, likelihood of confusion, consumer's reasons for purchases, reasonable royalty rates.

Plaintiffs' Expert report is irrelevant to these assertions. Plaintiffs' expert's calculations of alleged 22 basis for Summary Judgment. (See Plaintiffs' discussion of the legal issue of burden shifting to defendants 23 24 25 26 27 28 that provide incomplete or inaccurate sales records thereby incurring the risk of gross profits being a measure of damages).

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88)

SOF¶ 94: There is no evidence that hangtags were used on "such styles" or that consumers bought garments because of hangtags.

This assertion is patently false. With that, FUBU designed two types of nametags bearing Plaintiffs' marks (Exhibit _12 ). These hangtags appear on numerous garments identified by Plaintiffs during their investigation. (Exhibit _13(A) Phipps Affidavit, Schedule of Merchandise). Some tags (Computer assisted drawings) provided by FUBU show hangtags attached to the garments (Exhibit _24 FUBU CADS.

FUBU's executives testified that they designed hangtags to include Plaintiffs' names, nicknames, and numbers and that the hangtags served no other purpose but to market the garments.

89) 13 14 15 16 17 18 19 20 21 22 90)

SOF¶ 95: Plaintiffs' Expert did not determine a reasonable royalty rate for plaintiffs' marks.

While this is irrelevant to the Summary Judgment plaintiffs assert that there is ample evidence for a 25% royalty rate. HGI paid Plaintiffs Neal and Haynes a 25% royalty on the bobble head doll merchandise. Mannie Jackson testified that he personally agreed to 25%. (Exhibit 1(A) Jackson Tr. 176 ). Additionally, the Collective Bargaining Agreement defines a royalty rate of 25% (Exhibit 2(A)(B), CBA Article 14.12). Neal's last contract defines a 25% royalty as a minimum. (Exhibit _3(A) Neal Contract).

SOF¶ 96: Plaintiffs have no evidence of the fair market value of the Plaintiffs' marks.

Evidence of royalty rates already paid, or agreed to be paid, to Plaintiffs is evidence. See above. 23 24 25 26 27 28 91) SOF¶ 98: Plaintiffs have no evidence of FUBU's willful infringement.

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Intent can be both actual and constructive. Considering all the circumstances, HGI's and FUBU's reckless disregard of Plaintiffs' right have failure to do any due diligence and constitutes willful infringement. (See Plaintiffs' discussion of this legal issue in Plaintiffs' Memorandum).

DATED this 23rd day of November 2005. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Joel L. Herz, Esquire LAW OFICES OF JOEL L. HERZ LaPolma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tuscon, AZ 85718-3206 Attorney for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Edward R. Garvey, Esq. and Christa Westerberg, Esquire Garvey & Stoddard, P.A. PLEASE TAKE FURTHER NOTICE that copies of the above-referenced documents have been served via first class mail upon the following attorneys: By: _____/S/Clay M. Townsend________________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

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634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esquire Florence M. Bruemmer, Esquire ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Safia A. Anand, Esquire Ira S. Sacks, Esquire 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Certificate of Service Vanessa Braeley, declares as follows: 1. I hereby certify that on November__23rd __, 2005, a true and correct copy of the Plaintiffs' Statement of Facts was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Joel Herz ­ [email protected], [email protected] Ira Sacks ­ [email protected]

2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on November ___23rd __, 2005, a true and correct copy of Plaintiffs' Statement of Facts, postage paid thereon, was sent via U.S. Mail to the following parties, at the addresses listed, to-wit:

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Joel L. Herz LAW OFFICES OF JOEL L. HERZ LaPolma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tuscon, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Edward R. Garvey Christa Westerberg 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Intl Inc. and Harlem Globetrotters Int'l Foundation Safia Anand, Esquire and Ira S. Sacks, Esquire Dreier, LLP 1350 Broadway 11th Floor New York, NY 10018 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC 3. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: November___23rd _, 2005 Signed: _____/S/Vanessa L. Braeley_______ _____ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

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