Free Memorandum - District Court of Arizona - Arizona

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Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 Ira S. Sacks, Esq. Safia A. Anand, Esq. Dreier LLP 499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, a married man, Plaintiff/Counterdefendant vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al., Defendants/Counterclaimants ) ) ) ) ) ) ) ) ) ) )

Case No. CV 04-0299 PHX-DGC Case No. CV 04-1023-PHX-DGC

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT GTFM, LLC'S MOTION TO STRIKE PLAINTIFFS' EXPERT REPORT Defendant GTFM, LLC ("GTFM") submits this memorandum of law in support of its

22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 1 Filed 10/27/2005 Page 1 of 15 Motion to Strike Plaintiffs' Expert Report ("Motion to Strike"), pursuant to Rule 702 of the Federal Rules of Evidence and this Court's August 3 and August 18, 2005 Orders. GTFM respectfully requests that the Court grant an order (i) striking Plaintiffs' Expert Report in its entirety and precluding Plaintiffs' Expert from testifying; or in the alternative (ii) striking the

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portions of the report which violate this Court's August 3 and August 18 Orders, as well as the portions of Plaintiffs' Expert Report that invade the province of the Court and state legal conclusions and/or misleadingly quote incomplete portions of documents; and/or (iii) precluding plaintiffs from admitting their Expert Report into evidence at trial. Plaintiffs' Expert Report does not meet the requirements set forth in Rule 702 of the Federal Rules of Evidence for expert testimony. Rule 702 requires the Court to ensure that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Ms. Abalos' report is neither reliable nor relevant and should therefore be stricken in its entirety. First, Rule 702 requires that the evidence or testimony assist the trier of fact to understand the evidence or to determine a fact in issue. In tort law, particularized damages must be proven on an individual basis. Here, Plaintiffs' Expert Report does not estimate any

compensatory damages for the individual plaintiffs, only for all plaintiffs in the aggregate. 14 15 16 17 18 19 20 21 was unable to determine had any link with any plaintiff. Moreover, Ms. Abalos sought to 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 2 Filed 10/27/2005 Page 2 of 15 disgorge GTFM's profits for sales of styles in her report because those styles may have used hangtags that included plaintiffs' names and alleged jersey numbers, along with the FUBU and Harlem Globetrotters trademarks, even though she concedes that there is no evidence that such Therefore, the information contained in the report would not aid a jury in determining whether each individual plaintiff is entitled to damages, and if so, how much each individual plaintiff should be awarded. As a result, Plaintiffs' Expert Report is irrelevant. Second, Plaintiffs' Expert Report is admittedly speculative. Specifically, Ms. Abalos concedes that Plaintiffs' Expert Report determined the amount of damages by using sales of styles that included (i) non-plaintiffs' names, (ii) returns, (iii) samples and (iv) styles that she

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tags were, in fact, used on such styles or that consumers bought these garments because of a hangtag. Moreover, Ms. Abalos' sole basis for the opinion in Plaintiffs' Expert Report that plaintiffs are entitled to disgorgement of all of GTFM's profits is from a law review article, which proposes a model to calculate compensatory damages in right of publicity actions and does not include unjust enrichment. The choice of the proper measure of damages in this case is a matter of law for the Court, not a matter of expert testimony. Further, that law review article even states that the fair market value of publicity is the most obvious measure of damages. Nevertheless, Plaintiffs' Expert Report determined that plaintiffs in these actions were entitled to damages based on a theory of unjust enrichment because it was "more punitive, frankly". Finally, Plaintiffs' Expert Report is in direct violation of this Court's August 3 and August 18, 2005 Orders, which state that Defendants shall provide full and complete expert

14 15 16 17 18 19 20 21 Plaintiffs' Inadequate Expert Report 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 3 Filed 10/27/2005 Page 3 of 15 Plaintiffs' Expert, Sandra Abalos, submitted her expert report relating to damages on August 19, 2005. (Sacks Decl. Exhibit C). Plaintiffs' Expert Report seeks to disgorge all gross profit earned by GTFM from the sale of Alleged Infringing Goods in the minimum amount of $1,832,304, as well as statutory damages pursuant to the Lanham Act; despite the fact that plaintiffs' names, disclosures no later than August 19, 2005, and may not supplement the report thereafter. Throughout the report, plaintiffs' expert complains about information that was not produced during discovery that would have impacted her findings, despite the fact that this Court had already determined that plaintiffs sought this information too late in the discovery process. Such remarks would be highly prejudicial to GTFM at trial. FACTUAL BACKGROUND

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alleged jersey numbers and/or likenesses are not registered trademarks ("Alleged Trademarks") and plaintiffs have not adduced any evidence to suggest that GTFM willfully infringed their rights. (Plaintiffs' Expert Report, pgs. 16-17; Abalos Tr. 44;1 Sacks Decl. ¶ 14). In her deposition, Ms. Abalos admitted the inadequacies that existed in Plaintiffs' Expert Report. Specifically, she admitted that she determined the amount of damages by using sales of styles that included (i) non-plaintiffs' names, (ii) returns, (iii) samples and (iv) styles that she was unable to determine had any link with any plaintiff. (Abalos Tr. 171-75; 181-219; 229-30). Moreover, Abalos seeks to disgorge GTFM's profits for sales of styles in her report because those styles may have used hangtags that included plaintiffs' names and alleged jersey numbers, along with the FUBU and Harlem Globetrotters trademarks. (Abalos Tr. 186, 203-06, 208). However, there is no evidence that such tags were, in fact, used on such styles or that consumers bought these garments because of a hangtag. (Abalos Tr. 160-61).

14 15 16 17 18 19 20 21 GTFM's profits is from a law review article entitled "The Price of Celebrity: Valuing the Right of 22 23 24 25
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Ms. Abalos has also admitted that Plaintiffs' Expert Report does not estimate any compensatory damages for individual plaintiffs, only in the aggregate. (Abalos Tr. 247-50). The information contained in Plaintiffs' Expert Report would not aid a jury in determining whether each individual plaintiff is entitled to damages, and if so, how much each individual plaintiff should be awarded. (Sacks Decl. ¶ 13). Ms. Abalos' sole basis for her opinion that plaintiffs are entitled to disgorgement of all of

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References to "Abalos Tr. ___" refer to deposition transcript pages from the deposition of Sandra Abalos, attached to the Sacks Decl. as Exhibit F.

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Case 2:04-cv-00299-DGC

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Publicity in Calculating Compensatory Damages" ("Law Review Article"). (Abalos Tr. 19-20). But Plaintiffs' alleged entitlement to such disgorgement is a matter of law for this Court, not for expert opinion. What is more, Ms. Abalos concedes that the Law Review Article proposes a model to calculate compensatory damages in right of publicity actions that does not include unjust enrichment and states that the fair market value of publicity is the most obvious measure of damages. (Abalos Tr. 36-37, 166). Nevertheless, Ms. Abalos determined that plaintiffs in these actions were entitled to damages based on a theory of unjust enrichment because it was "more punitive, frankly". (Abalos Tr. 161- 68). Plaintiffs' Expert Report does not offer any evidence as to the fair market value of the use of their Alleged Trademarks; indeed, plaintiffs specifically eschewed such a claim. (Abalos Tr. 31-37, 55, 162-64, 236-38). Moreover, Ms. Abalos failed to determine what a reasonable royalty rate was for the use of the Alleged Trademarks and admitted that the 8-10% paid by

14 15 16 17 18 19 20 21 61). 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 5 Filed 10/27/2005 Page 5 of 15 Plaintiffs' Expert Report Violates This Courts August 3 and August 18 Orders On August 3, 2005, this Court ordered that "Defendants shall provide full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than August 19, 2005." (Sacks Decl. Exhibit A)(emphasis in original). Thereafter, on GTFM to HGI ­ for rights including the Globetrotters marks ­ would be far higher than the reasonable royalty rate for plaintiffs' names, alleged jersey numbers, likenesses and/or images alone. (Abalos Tr. 31-32, 35). Furthermore, Ms. Abalos concedes that her report does not have any opinion on the diminution of any of the plaintiffs' publicity value. (Abalos Tr. 36). Indeed, she admits that her report only calculates damages on a theory of disgorgement/unjust enrichment. (Abalos Tr. 59-

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August 16, 2005, this Court held a discovery conference call with the parties, on the record, wherein plaintiffs' counsel expressed concern about a variety of documents that had not been produced by Defendants and sought guidance from the Court as to whether the expert deadline should be extended or plaintiffs should supplement the report after receiving the documents. (Sacks Decl. Exhibit B). That discovery conference call resulted in an Order, dated August 18, 2005, wherein the Court stated that it "is troubled by the lateness of [the plaintiffs'] efforts." The Order stated further that it had already "extended the deadline for Plaintiffs' expert report to August 19, 2005, after Plaintiffs failed to produce a complete expert report on July 22, 2005." The Court

reprimanded plaintiffs for undertaking critical discovery related to their expert reports in August 2005. The August 18 Order stated that "[t]he Court will not adjust the current expert deadline of August 19, 2005, nor will the Court permit supplementation of the report based on information

14 15 16 17 18 19 20 21 Merchandise Sales or the gross profit representations due to the following requested information not 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 6 Filed 10/27/2005 Page 6 of 15 being produced in discovery..." (Plaintiffs' Expert Report, pg. 13). Ms. Abalos then proceeds to list ten items that were not produced in discovery. Indeed, throughout the entire report, Ms. Abalos remarks that her findings are only based on disclosed sales and if GTFM had produced the additional requested documentation the findings would be modified and higher. (Sacks Decl. ¶¶ 7that could have been discovered during the year-plus time that preceded the expert deadline. Plaintiffs must provide full and complete expert reports by August 19, 2005." (Sacks Decl. Exhibit B)(emphasis added). Nevertheless, on August 19, 2005 plaintiffs submitted Plaintiffs' Expert Report, which is in direct violation of the Court's orders. (Sacks Decl. ¶¶ 5-8). For instance, on page 13 of Plaintiffs' Expert Report, Ms. Abalos states "[w]e were unable to verify the reasonableness of disclosed HGI

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8). Attached as Exhibit D to the Sacks Declaration is a Marked Form of Plaintiffs' Expert Report, which illustrates the portions of the Report that violate the Court's Orders.2 On August 22, 2005 counsel for GTFM requested that plaintiffs submit a revised expert report within the next week because the current report was in violation of the Court's August 18 Order. (Sacks Decl. Exhibit E). To date, plaintiffs have not submitted a revised report. (Sacks Decl. ¶ 11). Ms. Abalos' remarks in violation of this Court's orders throughout Plaintiffs' Expert Report would be highly prejudicial to GTFM in this jury trial. (Sacks Decl. ¶ 12).

ARGUMENT I. PLANTIFFS' EXPERT REPORT SHOULD BE STRICKEN IN ITS ENTIRETY FOR FAILURE TO MEET THE REQUIREMENTS OF RULE 702 OF THE FEDERAL RULES OF EVIDENCE Plaintiffs' Expert Report should be stricken in its entirety because it does not meet the

14 15 16 17 18 19 20 21 Ms. Abalos' report is neither relevant nor reliable. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 7 Filed 10/27/2005 Page 7 of 15
Exhibit D to the Sacks Decl. also illustrates the portions of Plaintiffs' Expert Report that invade the province of the Court and state legal conclusions and/or misleadingly quote incomplete portions of documents. If Plaintiffs' Expert Report is not stricken in its entirety, all such portions should be redacted.
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requirements of Rule 702 of the Federal Rules of Evidence ("Rule 702"). Rule 702 requires that the Court ensure "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993); Guidroz-Brault v. Missouri Pacific Railroad Co., 254 F.3d 825, 829 (9th Cir. 2001); Recreational Developments of Phoenix, Inc. v. City of Phoenix, 220 F.Supp.2d 1054, 1059 (D.Ariz. 2002); Olsen v. Marriot International, Inc., 75 F.Supp.2d 1052, 1056 (D.Ariz. 1999).

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A. Plaintiffs' Expert Report is Irrelevant Pursuant to Rule 702, an expert's evidence or testimony must be relevant. Daubert, 509 U.S. at 591; Guidroz-Brault, 254 F.3d at 829. "The party advancing the expert testimony ... bears the burden of showing that it is relevant to advancing a claim or defense." CFM

Communications, LLC v. Mitts Telecasting Co., 2005 WL 2562651, at *7 (E.D.Cal. Oct. 11, 2005)(citing Daubert, 509 U.S. at 592 n.10). Rule 702 requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue"; otherwise, it is non-helpful. Daubert, 509 U.S. at 591. "Trademark remedies are guided by tort law principles." McClaran v. Plastic Industries, Inc., 97 F.3d 347, 361 (9th Cir. 1996)(citing Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993). In tort law, "[a]lthough many common issues of fact and law will be capable of resolution on a group basis, individual particularized damages still must be proved on

14 15 16 17 18 19 20 21 Here, Ms. Abalos has admitted that Plaintiffs' Expert Report does not estimate any 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 8 Filed 10/27/2005 Page 8 of 15 compensatory damages for the individual plaintiffs, only in the aggregate. (Abalos Tr. 247-50). Therefore Plaintiffs' Expert Report is irrelevant. The information contained in the report would not aid a jury in determining whether each individual plaintiff is entitled to damages, and if so, an individual basis." In re Hanford Nuclear Reservation Litigation, 292 F.3d 1124, 1135 (9th Cir. 2002)(citing Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1200 (6th Cir. 1988)("generalized proofs will not suffice to prove individual damages"); Abuan v. General Electric Co., 3 F.3d 329, 334 (9th Cir. 1993)(rejecting as insufficient experts' testimony that workers as a group were at risk for future injury because "at some point in the litigation Plaintiffs [are] required to prove individual causation and damages").

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how much each individual plaintiff should be awarded. (Sacks Decl. ¶ 13). Pursuant to Rule 702, irrelevant evidence should not be permitted. B. Plaintiffs' Expert Report is Speculative Another requirement of Rule 702 is that the expert's evidence or testimony must be reliable. Daubert, 509 U.S. at 590; Guidroz-Brault, 254 F.3d at 829. An expert's testimony is not reliable if it is speculative. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 807 (9th Cir. 1988)(affirming the district court's decision to exclude expert's study and testimony where "[h]is speculation about the amount of appellants' damages has scant basis in the record [and] [h]is study rests on unsupported assumptions and unsound extrapolation"); In re Bonham, 251 B.R. 113, 115 (Bankr.D.Alaska 2000)(denying admission of expert's report based on substantial factual mistakes, speculation, innuendo and inferences unsupported by full explanations and analysis).

14 15 16 17 18 19 20 21 and alleged jersey numbers, along with the FUBU and Harlem Globetrotters trademarks. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 9 Filed 10/27/2005 Page 9 of 15 (Abalos Tr. 186, 203-06, 208). However, Ms. Abalos concedes that there is no evidence that such tags were, in fact, used on such styles or that consumers bought these garments because of a hangtag. (Abalos Tr. 160-61). Here, Plaintiffs' Expert Report is admittedly speculative. Specifically, Ms. Abalos

admitted in her deposition that she determined the amount of damages in Plaintiffs' Expert Report by using sales of styles that included (i) non-plaintiffs' names, (ii) returns, (iii) samples and (iv) styles that she was unable to determine had any link with any plaintiff. (Abalos Tr. 17175; 181-219; 229-30). Moreover, Ms. Abalos sought to disgorge GTFM's profits for sales of

styles in her report because those styles may have used hangtags that included plaintiffs' names

Plaintiffs' Expert Report is speculative and unreliable. Therefore, pursuant to Rule 702, the Report should be stricken in its entirety. II. PLAINTIFFS' EXPERT REPORT USURPS THE COURT'S FUNCTION IN ASSERTING THAT DISGORGEMENT OF PROFITS IS THE APPROPRIATE MEASURE OF DAMAGES Plaintiffs' Expert Report also should be stricken in its entirety because it usurps this Court's function in asserting that disgorgement is the appropriate measure of damages. In Plaintiffs' Expert Report, plaintiffs claim that they are entitled to disgorgement of GTFM's profits or statutory damages. Moreover, plaintiffs have requested that such profits and damages be trebled pursuant to 15 U.S.C. § 1117. Ms. Abalos' entire report is based on the premise that the plaintiffs are entitled to unjust enrichment and does not offer the Court an alternative method of measuring damages. First, the availability of disgorgement or unjust enrichment as a remedy is a matter of law for the Court. For example, pursuant to 15 U.S.C. § 1117(a) and the law of this Circuit, willful infringement is a prerequisite to the disgorgement of defendant's profits. Lindy Pen Co., Inc., 982 F.2d at 1405-09 (absent willful infringement, to award profits would amount to a punishment in violation of the Lanham Act which stipulates that a remedy shall constitute compensation, not a penalty); Adray v. Adry-Mart, Inc., 76 F.3d 984, 988 (9th Cir. 1995)(Adray could only recover Adry-Mart's profits if the infringement was willful).3

Similarly, Plaintiffs' Expert Report observes that "statutory damages [are] available to the Plaintiff's (sic) including but not limited to statutory damages for any use in connection with the sale, offering for sale, or distribution of infringed merchandise in various damage amounts per counterfeit mark." (Plaintiffs' Expert Report, pg. 17). This statement is incorrect as a matter of law. Section 1117(c) is the only provision in the Lanham Act that provides for statutory damages and it specifically provides for statutory damages for the use of counterfeit marks. 15 U.S.C. § 1117(c). A counterfeit mark is defined in § 1116(d) as a counterfeit of a mark that is registered on the principal register... 15 U.S.C. § 1116(d). Plaintiffs' names, alleged jersey numbers, likenesses and images are not registered marks and therefore statutory damages are inapplicable in these cases.

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The same is true under Arizona law:

the availability of disgorgement or unjust

enrichment under Arizona law is subject to stringent legal requirements, not expert musings. A party must prove each of the following elements: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) the absence of justification for the enrichment and the impoverishment; and (5) the absence of a legal remedy. Trustmark Insurance Co. v. Bank One, Arizona, NA, 48 P.3d 485, 491 (Ariz. Ct. App. 2002); City of Sierra Vista v. Cochise Enterprises, Inc., 697 P.2d 1125, 1131 (Ariz. Ct. App. 1984). Indeed, Ms. Abalos admits that her sole basis for her "expert opinion" that plaintiffs are entitled to disgorgement of all of GTFM's profits is from a law review article entitled "The Price of Celebrity: Valuing the Right of Publicity in Calculating Compensatory Damages" ("Law Review Article"). (Abalos Tr. 19-20). The Law Review Article discusses three methodologies for measuring damages in a right of publicity case: 1) fair market value ­ the going rate for the

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To the same effect, trebling and attorneys fees also are not the province of an expert report. Section 1117(a) only permits an award of attorneys' fees in exceptional cases. 15 U.S.C. § 1117(a); Lindy Pen Co., Inc., 982 F.2d at 1409. Moreover, courts may only award three times plaintiff's damages or three times defendant's profits in cases of willful infringement. Interstellar Starship Services v. Epix Inc., 125 F.Supp.2d 1269, 1272 (D. Ore. 2001). Additionally, any attempt to recover treble damages or attorneys' fees under § 1117(b) fails because, as explained above, there has been no counterfeiting alleged in these actions because the Alleged Trademarks are not registered. Therefore, the prerequisites for recovery under § 1117(b) have not been met. And even if they were, such a determination is for the Court, not for an expert.

appropriated service; 2) fair market value plus damages to the plaintiff's future publicity value; and 3) unjust enrichment. Matthew Savare, The Price of Celebrity: Valuing the Right of Publicity in Calculating Compensatory Damages, 11 UCLA Ent. L. Rev. 129, 158 (2004).

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The proposed model to calculate compensatory damages in right of publicity actions set forth in the Law Review Article does not include unjust enrichment and states that the fair market value of publicity is the most obvious measure of damages. Id. at 154, 159-192. Indeed, Ms. Abalos concedes as much. (Abalos Tr. 36-37, 166). Nevertheless, Ms. Abalos determined that plaintiffs in these actions were entitled to damages based on a theory of unjust enrichment because it was "more punitive, frankly". (Abalos Tr. 161- 68). Plaintiffs' Expert Report does not offer any evidence as to the fair market value of the use of their Alleged Trademarks; indeed, plaintiffs specifically eschewed such a claim. (Abalos Tr. 31-37, 55, 162-64, 236-38). Moreover, Ms. Abalos failed to determine what a reasonable royalty rate was for the use of the Alleged Trademarks and admitted that the 8-10% paid by GTFM to HGI ­ for rights including the Globetrotters marks ­ would be far higher than the reasonable royalty rate for plaintiffs' names, alleged jersey numbers, likenesses and/or images

14 15 16 17 18 19 20 21 III. PLAINTIFFS' EXPERT REPORT VIOLATES THIS COURT'S ORDERS 22 Plaintiffs' Expert Report violates this Court's August 3 and August 18, 2005 Orders. On 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 August 3, 2005, this Court ordered that "Defendants shall provide full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than August 19, 2005." (Sacks Decl. Exhibit A) (emphasis in original). Thereafter, on August 16, 2005, this Court held a discovery conference call with the parties, on the record, wherein 12 Filed 10/27/2005 Page 12 of 15 alone. (Abalos Tr. 31-32, 35). Furthermore, Ms. Abalos concedes that her report does not have any opinion on the diminution of any of the plaintiffs' publicity value. (Abalos Tr. 36). Indeed, she admits that her report only calculates damages on a theory of unjust enrichment. (Abalos Tr. 59-61). For all of the foregoing reasons, Plaintiffs' Expert Report should be stricken in its entirety.

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plaintiffs' counsel expressed concern about a variety of documents that had not been produced by Defendants and sought guidance from the Court as to whether the expert deadline should be extended or plaintiffs should supplement the report after receiving the documents. (Sacks Decl. Exhibit B). That discovery conference call resulted in an Order, dated August 18, 2005, wherein the Court stated that it "is troubled by the lateness of [the plaintiffs'] efforts." The Order stated further that the Court had already "extended the deadline for Plaintiffs' expert report to August 19, 2005, after Plaintiffs failed to produce a complete expert report on July 22, 2005." The Court reprimanded plaintiffs for undertaking critical discovery related to their expert reports in August 2005. The August 18 Order stated that "[t]he Court will not adjust the current expert deadline of August 19, 2005, nor will the Court permit supplementation of the report based on information that could have been discovered during the year-plus time that preceded the expert deadline. Plaintiffs must provide full and complete expert reports by August 19, 2005." (Sacks Decl.

14 15 16 17 18 19 20 21 Ms. Abalos then proceeds to list ten items that were not produced in discovery. Indeed, 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 13 Filed 10/27/2005 Page 13 of 15 throughout the entire report, Ms. Abalos remarks that her findings are only based on disclosed sales and if GTFM had produced the additional requested documentation the findings would be modified and higher. (Sacks Decl. ¶¶ 7-8). Attached as Exhibit D to the Sacks Declaration is a Marked Form of Plaintiffs' Expert Report, which illustrates the portions of the Report that Exhibit B)(emphasis added). Nevertheless, on August 19, 2005 plaintiffs submitted Plaintiffs' Expert Report, which is in direct violation of the Court's orders. (Sacks Decl. ¶¶ 5-8). For example, on page 13 of Plaintiffs' Expert Report, Ms. Abalos states "[w]e were unable to verify the reasonableness of disclosed HGI Merchandise Sales or the gross profit representations due to the following requested information not being produced in discovery..." (Plaintiffs' Expert Report, pg. 13).

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violate the Court's Orders, as well as the portions of Plaintiffs' Expert Report that invade the province of the Court and state legal conclusions and/or misleadingly quote incomplete portions of documents. If Plaintiffs' Expert Report is not stricken in its entirety, all such portions should be redacted. On August 22, 2005 counsel for GTFM requested that plaintiffs submit a revised expert report within the next week because the current report was in violation of the Court's August 18 Order. (Sacks Decl. Exhibit E). To date, plaintiffs have not submitted a revised report. (Sacks Decl. ¶ 11). Ms. Abalos' remarks in violation of this Court's orders throughout Plaintiffs' Expert Report would be highly prejudicial to GTFM in this jury trial. (Sacks Decl. ¶ 12). GTFM respectfully requests that if Plaintiffs' Expert Report is not stricken in its entirety, the portions of the Report that violate the Court's Orders, as well as the portions of Plaintiffs' Expert Report that invade the province of the Court and state legal conclusions and/or

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 190 14 Filed 10/27/2005 Page 14 of 15 misleadingly quote incomplete portions of documents be redacted. Further, GTFM respectfully requests that plaintiffs be precluded from admitting Plaintiffs' Expert Report into evidence at trial.

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CONCLUSION Based on the foregoing, GTFM respectfully requests that the Court grant an order (i) striking Plaintiffs' Expert Report in its entirety and precluding Plaintiffs' Expert from testifying; or in the alternative (ii) striking the portions of the report which violate this Court's August 3 and August 18 Orders, as well as the portions of Plaintiffs' Expert Report that invade the province of the Court and state legal conclusions and/or misleadingly quote incomplete portions of documents; and/or (iii) precluding plaintiffs from admitting Plaintiffs' Expert Report into evidence at trial. DATED: October 27, 2005 ____/s/ Ira S. Sacks___________ Ira S. Sacks, Esq. Safia A. Anand, Esq. Dreier LLP 499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 (Pro Hac Vice) Joel L. Herz, Esq. State Bar Number 015105 La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, Arizona 85718-3206 Telephone: 520-529-8080 Facsimile: 520-529-8077 Attorneys for Defendant GTFM, LLC

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