Free Statement - 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. STATEMENT OF CONTRAVERTING FACTS IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANT FUBU THE COLLECTION LLC'S AND GTFM OF ORLANDO, LLC d/b/a FUBU COMPANY STORE'S RENEWED 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.

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Pursuant to Local Rule 1.10 (l)(1) of the United States District Court for the District of Arizona, Plaintiff Meadowlark Lemon (hereinafter "Plaintiff") submits this Statement of Contraverting Facts ("SOCF") in Support of his Response to Defendants FUBU the Collection and GTFM of Orlando, LLC d/b/a FUBU Company Store's (hereinafter collectively as "Defendants") Motion for Summary Judgment, as follows: UNDISPUTED FACTS 1. Plaintiff agrees with ¶ 1 of Defendants' Statement of Facts ("Defendants' SOF). 2. Plaintiff agrees with ¶ 2 of Defendants' SOF. 3. Plaintiff agrees with the first sentence of ¶ 4 of Defendants' SOF but affirmatively disputes the second sentence. 4. Plaintiff agrees with the assertion in ¶ 5 of Defendants' SOF that Ira Sacks made the statements contained therein, but Plaintiff disputes the truth of those statements. 5. Plaintiff agrees with ¶ 6 of Defendants' SOF. 6. Plaintiff agrees with ¶ 7 of Defendants' SOF. 7. Plaintiff agrees with ¶ 8 of Defendants' SOF. 8. Plaintiff agrees with ¶ 12 of Defendants' SOF. 9. Plaintiff agrees with ¶ 13 of Defendants' SOF. 10. Plaintiff agrees with ¶ 15 of Defendants' SOF. 11. Plaintiff agrees with ¶ 16 of Defendants' SOF insofar as Defendants did continue to assert to Plaintiff that the only proper party is GTFM, LLC. However, Plaintiff affirmatively disputes the truth of those statements insofar as Plaintiff believes that GTFM, LLC is not the only proper party to this action, but FUBU the Collection and GTFM of Orlando are also proper parties.

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12. Plaintiff agrees with ¶ 17 of Defendants' SOF. 13. Plaintiff agrees with ¶ 18 of Defendants' SOF. 14. Plaintiff agrees with ¶ 20 of Defendants' SOF. 15. Plaintiff agrees with ¶ 22 of Defendants' SOF. 16. Plaintiff agrees with ¶ 24 of Defendants' SOF. 17. Plaintiff agrees with ¶ 25 of Defendants' SOF. 18. Plaintiff agrees with ¶ 27 of Defendants' SOF. 19. Plaintiff agrees with ¶ 28 of Defendants' SOF. DISPUTED FACTS 20. Plaintiff disputes ¶ 3 of Defendants' SOF and affirmatively represents that Plaintiff does not know why Defendants are filing the Renewed Motion for Summary Judgment since Plaintiff voluntarily dismissed them as parties to this litigation on October 12, 2005. (See Motion to Dismiss pursuant to Fed.R.Civ.P. 41(a)(2), filed on October 12, 2005). 21. Plaintiff disputes the second sentence of ¶ 4 and affirmatively represents that Defendants are both proper parties in this action because the merchandise that is the subject of this lawsuit has been developed, created, produced, manufactured, marketed, promoted, and/or distributed for widespread sale by Defendants. (See Deposition of Daymond Aurum, attached as Exhibit "A" p.7-8, 10-11, 18-20). Furthermore, Defendants have clearly profited from the sale of the HGI/GTFM Apparel. (See Exhibit "A" p. 46-53; Deposition of Oliver Phipps, attached as Exhibit "B"). 22. Plaintiff disputes the truth of the statements set forth in ¶ 5 of Defendants' MSJ and affirmatively asserts that Defendants are proper parties in this action because they benefited

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from the licensing agreement between HGI and GTFM. (See Exhibit "A" p.7-8, 10-11, 1820, 46-53; Exhibit "B"). 23. Plaintiff disputes ¶ 9 of Defendants' SOF. Plaintiff asserts that FUBU the Collection, LLC is involved in the manufacturing, advertising, and/or selling of infringing products and has licensed, developed, created, produced, manufactured, promoted, sold, distributed, and/or exploited products which infringed upon the name and likeness of Plaintiff. (See Exhibit "A" p.7-8, 10-11, 18-20, 46-53; Exhibit "B"). 24. Plaintiff disputes ¶ 10 of Defendants' SOF. Plaintiff asserts that FUBU the Collection does do business and has a presence in Arizona. (See Exhibit "A" p. 46-53; Exhibit "B"; See Pictures of Bag and Receipt, attached as Exhibit "C"; Exhibit "A" p. 7-8, 10-11, 18-20). 25. Plaintiff disputes ¶ 11 of Defendants' SOF. Plaintiff asserts that FUBU the Collection has licensed, developed, created, produced, manufactured, promoted, sold, distributed and/or exploited products that infringed upon the name and likeness of Plaintiff. (See Exhibit "A" p. 7-8, 10-11, 18-20). 26. Plaintiff disputes ¶ 14 of Defendants' SOF. Plaintiff asserts that there is ample evidence in the record which disputes Mr. Aurum's sworn statements. Specifically, there is ample

evidence that FUBU the Collection participated in the design and marketing of the GTFM/HGI clothing line. (See Exhibit "A" p. 7-8, 10-11, 18-20). 27. Plaintiff disputes ¶ 19 of Defendants' SOF. Plaintiff affirmatively asserts that GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC are all represented by the same counsel and Plaintiff does not know which party is sending what documents.

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28. Plaintiff disputes ¶ 21 of Defendants' SOF. Plaintiff affirmatively asserts that FUBU the Collection, LLC and GTFM of Orlando, LLC are proper parties and due to their conduct, Arizona has personal jurisdiction over them. (See Exhibit "A" p. 7-8, 10-11, 18-20, 46-53). 29. Plaintiff disputes ¶ 26 of Defendants' SOF and asserts that FUBU the Collection, LLC is involved with the Harlem Globetrotters Merchandise. (See Exhibit "A" p. 46-53; Exhibit "B"; Exhibit "C"; Email from Ira Sacks dated 9/20/2005, attached as Exhibit "D"; Advertisements for FUBU's Harlem Globetrotters apparel, attached as Exhibit "E"). 30. Plaintiff does not have personal knowledge regarding whether GTFM, Inc. owns all of the trademarks using the word FUBU, as Defendants have not disclosed evidence indicating that to Plaintiff. However, Plaintiff does affirmatively assert that GTFM, Inc. does not own "FUBU the Collection," which is unregistered and which Plaintiff presumes is owned by FUBU the Collection, LLC. FUBU the Collection, LLC is a member of GTFM, LLC and received profits from the HGI/GTFM sublicensing agreement. (See Exhibit "A" p. 46-53; Deposition of Philip Blenden, attached as Exhibit "F" p. 8-9). Therefore, Plaintiff disputes ¶ 27 of Defendants' SOF. 31. Plaintiff disputes ¶ 29 of Defendants' SOF. Plaintiff asserts that FUBU the Collection, LLC uses the name "FUBU the Collection" in advertising and selling merchandise, specifically HGI/GTFM Apparel. (See Exhibit "C"; Exhibit "E"). Defendants have not submitted any substantiating evidence to show that FUBU the Collection, LLC does not use "FUBU the Collection" as a trade name. 32. Plaintiff disputes ¶ 30 of Defendants' SOF. Plaintiff affirmatively asserts that Defendants were aware of infringing overseas sales and failed to disclose that information to Plaintiff. (See Exhibit "B"; Exhibit "C"). Furthermore, although Defendants' counsel has stated that

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the unreported Philippines sales were either "unauthorized" or "transshipped from a USA retailer," Defendants have provided no evidence of such to Plaintiffs. (See Emails from Ira Sacks dated 9/19/2005 and 9/29/2005, attached as Exhibit "G"). 33. Plaintiff is without personal knowledge regarding whether GTFM, LLC received royalties or royalty reports as a result of infringing Philippines sales. Plaintiff does affirmatively assert that Defendants have withheld information from Plaintiff, and failed to disclose information and documents obviously related to this controversy. (SOCF ¶ 38, 40, infra). Since Plaintiff is without personal knowledge, Plaintiff cannot dispute or agree with ¶ 31 of Defendants' SOF. 34. Plaintiff disputes ¶ 32 of Defendants' SOF. Plaintiff asserts that FUBU the Collection, LLC is involved in infringing sales in the Philippines. (See Exhibit "C"). Again, Plaintiff does not have personal knowledge regarding whether GTFM, Inc. owns all of the trademarks using the word FUBU, as Defendants have not disclosed evidence indicating that to Plaintiff. However, Plaintiff does affirmatively assert that GTFM, Inc. does not own "FUBU the Collection," which is unregistered and which Plaintiff presumes is owned by FUBU the Collection, LLC. FUBU the Collection, LLC is a member of GTFM, LLC and received profits from the HGI/GTFM sublicensing agreement. (See Exhibit "A" p. 46-53; Exhibit "F" p. 8-9). 35. Plaintiff disputes ¶ 33 of Defendants' SOF. Plaintiff affirmatively asserts that Defendants have not made attempts to explain the relationship between all of the FUBU-related entities as Defendants have never submitted evidence to Plaintiff disclosing the relationship between the FUBU-related entities. Plaintiff affirmatively asserts that through the discovery process, Plaintiff's counsel is attempting to understand the true structure of those entities.

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Furthermore, Plaintiff asserts that Plaintiffs have agreed to voluntarily dismiss FUBU the Collection, LLC and GTFM of Orlando, LLC. (See Motion to Dismiss pursuant to Therefore, Plaintiff is unsure why

Fed.R.Civ.P. 41(a)(2), filed on October 12, 2005).

Defendants are stating that plaintiffs' counsel `have chosen to ignore the evidence that shows neither FUBU the Collection, LLC nor GTFM of Orlando are properly in these lawsuits.' ADDITIONAL FACTS 36. Revenue from the licensing agreement using Plaintiffs' names clearly went to FUBU the Collection, LLC. (See Exhibit "A" p. 46-53). 37. The corporate representative for FUBU the Collection, LLC could not even give a ballpark estimate of the amount paid to FUBU the Collection, LLC or of even the gross moneys earned from the licensing deal. (See Exhibit "A" p. 46-53). 38. FUBU the Collection retail stores were making sales of infringing garments and hangtags bearing Plaintiffs' names in Manila, Phillipines as late as August 2005 that were never disclosed by the FUBU Defendants. (See Exhibit "B"). 39. FUBU the Collection's counsel represented that the unreported Philippines sales were either "unauthorized" or "transshipped from a USA retailer" but provided no evidence of such to Plaintiffs. (See Exhibit "G"). 40. The Philippines retailer indicated "FUBU the Collection" on its bags, receipts and signs and FUBU the Collection's counsel acknowledges that FUBU the Collection is a "common law mark" owned by the FUBU Defendants. (See Exhibit "C"; Exhibit "D"). 41. FUBU the Collection, LLC participated in the design and marketing of the clothing line. SOCF ¶ 42-45, infra.

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42. Daymond Aurum is CEO of FUBU the Collection, LLC. (See Exhibit "A" p.7). Mr. Aurum is in charge of marketing, looking over distribution, and product placement on artists. Id. 43. Before entering into the contract with HGI, Mr. Aurum, on behalf of FUBU the Collection, LLC, attended meetings regarding the formulation of the clothing line, and approved the idea of the Harlem Globetrotters clothing line because he though it would be a good next step to FUBU's Platinum Line. (See Exhibit "A" p. 7-8). 44. Mr. Aurum, on behalf of FUBU the Collection, LLC, determined styles of the clothing in the line and marketing as far as what type of advertising should be done. (See Exhibit "A" p. 1011). 45. Samples of the clothing line would be looked at by Mr. Aurum, on behalf of FUBU the Collection, LLC, and he would approve or disapprove the various styles. (See Exhibit "A" p. 18-20). 46. Retailers are still selling the Platinum FUBU Harlem Globetrotters clothing line bearing Plaintiff's name. (See Exhibit "F" p. 46). 47. Plaintiff in this matter claims that he is being injured under the Lanham Act (15 U.S.C. § 1125(a)) and under the common law of invasion of the right of publicity, false light invasion of privacy and unjust enrichment. (See Plaintiff's Second Amended Complaint). 48. Plaintiff became aware of his claims when he discovered Harlem Globetrotter apparel and other merchandise bearing his name and player number that was being marketed using his likeness, image, name, number, etc. See id. 49. Obvious to any observer is that Harlem Globetrotters International, Inc. (hereinafter "HGI") allowed GTFM to develop, manufacture, distribute, market (using Plaintiff's likeness, image, name, number, etc.) and sell this apparel and other merchandise. (See Exhibit "E").

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50. Plaintiff alleges that Defendants have and are currently injuring him because all of the apparel and other merchandise conspicuously bare the logo `FUBU', and falsely associates Plaintiff with Defendant. (See Plaintiff's Second Amended Complaint). 51. Finally, Plaintiff noticed several advertisements for the apparel and other merchandise, which clearly designated the manufacturer as "FUBU". (See Exhibit "E"). 52. Plaintiff filed a Complaint to protect his statutory and common law rights, which he has reason to believe Defendants have violated. (See Plaintiff's Second Amended Complaint). 53. Defendants have withheld information from Plaintiff, and failed to disclose information and documents obviously related to this controversy. (SOCF ¶ 38, 40, supra). 54. The merchandise that is the subject of this lawsuit has been developed, created, produced, manufactured, marketed, promoted, and distributed for widespread sale to the public in the State of Arizona. (See Exhibit "E"; Clothing CAD's, attached as Exhibit "H"). 55. The merchandise bears Defendants' name and logo. See id. 56. Defendant FUBU the Collection admits that it is a member of GTFM, LLC. (See Exhibit "F" p. 8-9). DATED this 23rd day of November 2005. By: /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 November 23rd , 2005, a true and correct copy of the foregoing STATEMENT OF CONTRAVERTING FACTS IN SUPPORT OF PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANTS FUBU THE COLLECTION, LLC'S AND GTFM OF ORLANDO LLC d/b/a FUBU COMPANY STORE'S RENEWED 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,

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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 23rd day of November 2005, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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