Free Declaration - 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 Defendants FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store 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

DECLARATION OF IRA S. SACKS IN SUPPORT OF FUBU THE COLLECTION,

LLC'S AND GTFM OF ORLANDO d/b/a FUBU COMPANY STORE'S RENEWED MOTION FOR SUMMARY JUDGMENT
IRA S. SACKS declares as follows under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. I am a partner in the firm of Dreier LLP, attorneys for defendants 1 Case 2:04-cv-00299-DGC Document 188 Filed 10/24/2005 Page 1 of 3

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FUBU The Collection, LLC and GTFM of Orlando, L.L.C. d/b/a FUBU Company Store ("GTFM of Orlando") (collectively the "FUBU Defendants"). I submit this declaration in support of the FUBU Defendants' Renewed Motion for Summary Judgment. 2. Other than as expressly set forth herein, the matters set forth herein are

based on my personal knowledge. 3. On October 12, 2005, plaintiffs moved to dismiss the FUBU Defendants

without prejudice pursuant to Fed.R.Civ.P. Rule 41(a)(2). On October 18, 2005, the FUBU Defendants filed a partial opposition to the Plaintiffs' Motion to Dismiss the FUBU Defendants Without Prejudice (the "Partial Opposition") asking (a) that the claims against them be dismissed with prejudice, or in the alternative, (b) that the claims be dismissed without prejudice and (i) plaintiffs be ordered to pay the FUBU Defendants costs, disbursements and attorney's fees to date, or (ii) plaintiffs be enjoined from re-filing these claims against the FUBU Defendants. The

14 15 16 17 18 19 20 21 5. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 188 2 Filed 10/24/2005 Page 2 of 3 Complaint brought in the Middle District of Florida, naming FUBU The Collection, LLC and GTFM of Orlando as Defendants, entitled Fred "Curly" Neal, et. al. v. Harlem Globetrotters International, Inc., et. al., No. 6:04-CV-193-ORL-31JGG, filed February 13, 2004 (the "Florida Action"). This Action was transferred to the District of Arizona on May 12, 2004 and Attached hereto as Exhibit 2 is a true and correct copy of the Civil FUBU Defendants are filing this motion because the last date for filing dispositive motions is October 28, 2005 and the Plaintiffs' Motion to Dismiss may not be decided by that time. 4. Attached hereto as Exhibit 1 is true and correct copy of the Civil

Complaint brought in the District Court of Arizona, naming FUBU The Collection, LLC as a Defendant, entitled Meadowlark Lemon v. Harlem Globetrotters International, Inc., et. al., CV 04 0299 PHX DGC, filed February 10, 2004 (the "Arizona Action").

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consolidated with the Arizona Action on June 18, 2004. 6. In April 2004, I explained to plaintiffs' counsel that FUBU The

Collection, LLC is not a proper party in these actions because GTFM, LLC entered into a licensing agreement with Harlem Globetrotters International, Inc. ("HGI") on June 1, 2002, wherein HGI licensed to GTFM, LLC the right to use the names and likenesses of any and all players who have played for the Harlem Globetrotters, or who hereafter play for the Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. 7. Discovery confirmed that both FUBU The Collection, LLC and GTFM of

Orlando were improper parties and Arizona had no personal jurisdiction over them. 8. Attached hereto as Exhibit 3 is a true and correct copy of the Declaration

of Daymond Aurum, dated July 2004, which was originally filed with FUBU The Collection, LLC's and GTFM of Orlando's First Motion for Summary Judgment.

14 15 16 17 18 19 20 21 of Lawrence Blenden, dated October 17, 2005, submitted in support of the Partial Opposition. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 188 3 Filed 10/24/2005 Page 3 of 3 I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York October 24, 2005 ____/s/ Ira S. Sacks___________ Ira S. Sacks 9. Attached hereto as Exhibit 4 is a true and correct copy of the Declaration

of Ira S. Sacks, dated October 18, 2005, which was filed in support of the FUBU Defendants' Partial Opposition. 10. Attached hereto as Exhibit 5 is a true and correct copy of the Declaration

of Lawrence Blenden, dated September 21, 2005, submitted in support of the Partial Opposition. 11. Attached hereto as Exhibit 6 is a true and correct copy of the Declaration