Free Reply in Support of 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 Tel. 480-488-0102 Fax 480-488-2075 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiff, vs. HARLEMGLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his reply to Defendants' Response in Opposition to Plaintiff's Motion for Award of Attorney's Fees. Plaintiff respectfully requests that he be awarded his attorney's fees in the Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC REPLY TO DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES

amount of $313,535.04 as set forth in Plaintiff's Motion for Award of Attorney's Fees. I. PLAINTIFF IS ENTITLED TO HIS ATTORNEY'S FEES BECAUSE THIS IS NOT A ROUTINE TORT ACTION, BUT INSTEAD THIS IS AN ACTION THAT "ARISES OUT OF CONTRACT." First, Defendants affirmative misrepresentation of the record on page 1 of their Response boards on sanctionable conduct. As this Court is aware, and as is clear by the record, the Court never stated and Plaintiff certainly never agreed, "`since this is a tort case,' there is not `a basis for any attorney fees claim.'" Defendants attempt to cut and paste the record into a scenario where it
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would appear that the Court and Plaintiff agreed that Plaintiff had no claim for attorney fees, and therefore that Plaintiff was precluded from making such a motion. However, the record is clear that both the Court and Plaintiff left the question open and Plaintiff's motion is proper. Second, it is clear from the facts of Plaintiff's case that this is a case which `arises out of contract' and is not purely a tort claim. Defendants' cited cases of Benjamin v. Gear Roller Hockey Equipment, Inc., 198 Ariz. 462 (App. 2000), Fry's Food Stores of Ariz. v. Mather & Assoc's, Inc., 183 Ariz. 89 (App. 1995), and Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183 (App. 1990), are easily distinguished from Plaintiff's case and are not directly on point. The claims for attorney fees in the cases of Gear Roller Hockey, Fry's Food Stores, and Snowbowl were rejected under the established law in Arizona that A.R.S. § 12-341.01 does not apply to negligence suits, which do not arise out of contract even if the negligence suit is brought between contracting parties. See Fry's Food Stores, 183 Ariz. 89 (App. 1995)("although this suit is brought between contracting parties, it is a negligence suit to which the statute does not apply); See Gear Roller Hockey, 198 Ariz. 462 (App. 2000)(Plaintiff's mere signing of Waiver and Release of Liability Contract does not transform negligence claim into contract action); See Snowbowl, 166 Ariz. 183 (App. 1990)(Again, Plaintiff's mere signing of release of claims for negligence does not convert negligence action into one arising out of contract). However, those cases do not forgo an award of attorney's fees for other tort claims, not involving negligence, which arise out of contract. Defendants' cases have a limited application to cases in which negligence was the only claim pursued by the plaintiff. However, Plaintiff's case does not involve a claim for negligence. Attorney's fees may be

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awarded pursuant to § 12-341.01(A) based upon facts which show a breach of contract, the breach of which may also constitute a tort. Wenk v. Horizon Moving & Storage Co., 131 Ariz. 131 (1982). Plaintiff's claim is based upon facts which show a breach of his former player contract, the breach of which also constitutes a tort (invasion of the right of publicity). While Plaintiff agrees that attorney's fees are not appropriate in every case where there is a mere existence of a contract somewhere in the transaction, Plaintiff's case is one in which the requisite causal link between his claim and the underlying contract is present. See Marcus v. Fox, 150 Ariz. 333, 335 (1986). Plaintiff's claim of right of publicity does not exist in a vacuum, but is directly governed and defined by the terms in his player contract. In essence, Plaintiff's claim is an action to enforce the mutual contractual obligations between Plaintiff and Defendants, which includes both HGI and GTFM. Although Defendants would like to assert that GTFM is a "complete stranger," they are not and instead are bound by the strict terms of Plaintiff's player contract as a licensee of HGI. This is not a case in which GTFM just started using Plaintiff's name on some clothing, but instead they directly entered into a licensing agreement with HGI, and as a result were also specifically bound by the terms of Plaintiff's player contract. See Schwab Sales, Inc. v. GN Constr. Co., 196 Ariz. 33, 37 (App. 1998)(a cause of action may arise out of a contract even if one of the litigants was not a party to the contract). Had the specific language of Plaintiff's player contract been even slightly different, he may not have had a claim against HGI, GTFM, and Mr. Jackson for invasion of the right of publicity at all. Therefore, Plaintiff's claim of invasion of the right of publicity, as asserted against HGI,

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GTFM, and Mr. Jackson, arose out of contract. It is not required that this Court determine whether every single claim for invasion of the right of publicity will `arise out of contract.' Instead it is only relevant to determine whether, based upon the specific facts in Plaintiff's case, Plaintiff's claim for invasion of the right of publicity arises out of contract. See Schwab Sales, Inc. v. GN Constr. Co., 196 Ariz. 33, 37 (App. 1998)(although not all unjust enrichment claims necessarily arise out of a contract under § 12-341.01, the contract between Acme and GN was the origin of Schwab's unjust enrichment claim and thus the claim arose out of contract). Furthermore, another important contract underlies Plaintiff's claim in this case, as was the case in Schwab. The licensing agreement between GTFM and HGI, although bound by and interpreted in accordance with the licensing terms of Plaintiff's player contract, also had a hand in giving rise to Plaintiff's claim. Had HGI not entered into the licensing agreement with GTFM to produce apparel bearing Plaintiff's name and likeness, no such apparel would have been produced and Plaintiff would have had no claim for invasion of the right of publicity. See Schwab, 196 Ariz. at 37 (notwithstanding plaintiff's contract with defendant Acme, but for the contract between defendants Acme and GN, plaintiff would not have had an unjust enrichment claim against defendant GN). Based upon the foregoing, as well as Plaintiff's Motion for Award of Attorney's Fees, Plaintiff's claim arises out of contract and he is therefore eligible to receive his attorney's fees pursuant to A.R.S. § 12-341.01. II. PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES IS NOT INFLATED NOR IMPROPER AND THEREFORE SHOULD BE GRANTED. Defendants next state that even if the Court determines that Plaintiff's claim arose out of
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contract, Plaintiff is still not entitled to attorney's fees because, in considering a variety of factors, his requested fees are not reasonable. However, in light of all of the facts of this case, Plaintiff's requested attorney's fee award is reasonable. A. Plaintiff's Requested Award Is Not Inflated.

Defendants call Plaintiff's requested attorneys' fees "inflated" and also state, "Plaintiff's fee request makes no concession for any of the unsuccessful claims he asserted in this case." However, Defendants are misguided. As Plaintiff stated in his Motion for Award of Attorney's Fees at page 9, a couple hundred hours of work (at the rate of $200.00 per hour) performed by Anders Rosenquist were not billed and are not included in Plaintiff's request. Mr. Rosenquist did not record a great deal of his time spent working on this case, including time spent reviewing documents, meeting with Plaintiff, preparing for hearings, drafting letters and other documents, preparing for trial, etc., since other attorneys were also recording time for similar transactions. Therefore, the total requested attorney's fee amount is greatly reduced. B. Settlement Negotiations.

Defendants make the serious allegation that Plaintiff did not participate in good faith in the Court-ordered settlement conferences, which in turn raised the costs of litigation. This, of course, is the first time Defendants have ever made this allegation, as they never raised such an allegation to the Court prior to, during, or after any of the three settlement conferences participated in by the parties. Although, it is not surprising that Defendants now make such a blatant allegation `out of the blue' since it benefits their argument. Furthermore, the settlement judge involved in two of the settlement conferences (who was in a much better position than Defendants to assess whether the

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parties were participating in settlement negotiations in good faith) never made such an allegation. Although Plaintiff does not allege that Defendants did not participate in settlement negotiations in good faith, in hindsight, Defendants themselves were quite unreasonable. During the settlement conferences held after summary judgment rulings were issued, Defendants were considerably over-confident and never offered Plaintiff anything remotely close to the actual verdict he obtained of $783,900. In fact, Defendants continued to refuse to consider the possibility that Plaintiff could recover all of his requested compensatory damages at trial, and were convinced that they would be awarded all of their requested `deductions.' Defendants' settlement offers were solely based on the theory that the jury would reduce the $783,900 by each and every deduction they claimed they were entitled to. Therefore, Defendants' settlement offers only comprised the `worse case scenario' for Plaintiff next to the possibility of recovering nothing at all, and thus there was no incentive to accept such an offer. Of course, Defendants did not prevail on their theory. However, that did not stop Defendants from yet again unsuccessfully advancing the same theories in their Motions for a New Trial and Judgment as a Matter of Law, thus continuing to increase the costs of this litigation. It is curious that Defendants fail to mention the fourth settlement discussion between Plaintiff and Defendants, which occurred on the morning of the third day of trial. At that time, Defendants offered Plaintiff nothing, instead refusing to even discuss the possibility of settlement and conveying that Plaintiff should have accepted their previous offers. Despite Defendants' recent allegations, Plaintiff has always participated in settlement negotiations in good faith and is not precluded from receiving a fee award on that basis.

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C.

Specific Entries In Mr. Leonard's And Mr. Rosenquist's Affidavits.

Defendants object to several of the specific time entries contained in Mr. Leonard's and Mr. Rosenquist's Affidavits. Plaintiff does not have the room in this Reply to address each and every one of Defendant's over four hundred objections to specific time entries. Instead, Plaintiff asserts that the supporting documentation submitted with the affidavits complies with the requirements of L.R.Civ.P. 54.2, and will rely on the more than eighty-five pages of detailed billing statements he submitted to support the attorney's fee request. However, Plaintiff will address those points of major concern. First, Mr. Leonard's Affidavit does comply with L.R.Civ.P. 54.2. As the Court and all parties know, Mr. Leonard did not enter his appearance on behalf of Plaintiff until the third day of trial. Thus, all of the two weeks of Mr. Leonard's time recorded in his affidavit was spent preparing for each day of trial and participating in each day of trial. It is not necessary that Mr. Leonard's affidavit break down exactly how much time he spent cross-examining Mr. Jackson, preparing the direct questions for Plaintiff, putting together his closing argument, delivering his closing argument, etc. Mr. Leonard's Affidavit sets forth the attorney who performed the work, the dates on which the services were performed, the time spent each day, and the fact that all of his time spent was for preparing for and participating in each day of trial. Therefore, his affidavit comports with L.R.Civ.P. 54.2. Second, Mr. Rosenquist's Affidavit and supporting billing statements also comply with L.R.Civ.P. 54.2. The billing statements contain an enormous amount of detail regarding tasks performed each day. However, Defendants object to several of the entries as "block-billing."

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Apparently, Defendants would have preferred that the entries were broken down by how much time was spent on each individual task each day. For example, rather than billing an aggregate amount of time for several tasks performed in a single day, Defendants prefer that Plaintiff break down an entry in a single day to reflect how much time was spent on each individual task. However, "block-billing" is completely permissible, provides sufficient information as to the amount of time spent on tasks, and allows the Court to assess and evaluate the reasonableness of the time spent each day. Lytle v. Carl, 382 F.3d 978, 989 (9th Cir. 2004)("plaintiff's counsel . . . is not required to record in great detail how each minute of his time was expended."); See also Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 427 (9th Cir. 2000) (counsel need only "identify the general subject matter of [their] time expenditures"). Defendants' `preference' that each entry on each day be broken down by specific task, is not required by L.R.Civ.P. 54.2 and is not a reason to reject Plaintiff's requested attorney's fees. Despite the fact that Defendants' objection to Plaintiff's "block-billing" is completely baseless and not a valid objection, Defendants seek to preclude Plaintiff from recovering more than $110,000 of his requested attorney's fees simply because the tasks are not broken down in the manner preferred by Defendants. Plaintiff's time entries are not vague but instead contain a significant amount of detail, provide sufficient information as to the amount of time spent on tasks, and allow the Court to assess and evaluate the reasonableness of the time spent each day. Since Plaintiff's affidavits and supporting documentation comply with L.R.Civ.P. 54.2, Plaintiff is entitled to all of his requested fees.

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D.

Plaintiff Is Entitled To All Of His Requested Attorney's Fees.

Defendants have set forth several reasons as to why Plaintiff is not entitled to an award of certain fees because they are somehow not related to the ultimate outcome at trial. However, Plaintiff is entitled to an award of attorney's fees based upon each and every time entry. Each and every dollar claimed by Plaintiff was connected to the only issue in this lawsuit that Defendants impermissibly manufactured and sold apparel bearing Plaintiff's name and likeness. With regards to that single issue, Plaintiff prevailed at trial. Simply because Plaintiff did not prevail on every single claim he originally pursued regarding that very issue does not require a reduction in his requested attorney fee award of $313,535.04. See FMC Corp. v. Westinghouse Elec. Corp., 1996 U.S. App. LEXIS 12150 (9th Cir. 1996)(the district court did not err in awarding fees for work done on Count's I and II of the complaint because the entire case was based on the commercial transaction between FMC and Westinghouse, and, as such, there was no error in awarding fees for work done on those earlier dismissed counts). Furthermore, L.R.Civ.P. 54.2 does not require such a reduction. First, Plaintiff's award in total is greatly reduced and only represents a portion of his total attorney's fees because a couple hundred hours of work (at the rate of $200.00 per hour) performed by Anders Rosenquist were not billed and are not included in Plaintiff's request. It is likely Plaintiff's requested attorneys fees of $313,535.04 is only a small fraction of what Defendants themselves have expended on attorney's fees. Second, given the complexity of the litigation and the fact that this case has been ongoing for over three years (since November 2003), Plaintiffs' requested attorney's fees are more than reasonable.

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Furthermore, Plaintiff's requested attorney's fees should not be reduced merely because he had more than one attorney working on his case. It was often required that all attorneys for Plaintiff prepare for and attend certain events, such as depositions of Defendants in New York, court hearings, settlement conferences, and of course trial. Defendants themselves had far more attorneys than Plaintiff, with numerous out of state counsel as well as numerous and everchanging local counsel. Defendants can hardly complain that Plaintiff often had two, and sometimes three, attorneys working on his case. Also, Defendants claim that Plaintiff is not entitled to attorney's fees incurred for time spent in preparing his Motion for Award of Attorney's Fees. However, Defendants are incorrect and the court has previously allowed such an award. In Bank One, N.A. v. MCW Brickyard Commer., LLC, 2005 U.S. Dist. LEXIS 31665 (D. Ariz. 2005), the appellants also argued that an award of attorneys' fees pursuant to A.R.S. § 12-341.01 should not include the fees and costs the appellees incurred in filing their motions to recover attorneys' fees. However, the court disagreed, and cited the 9th Circuit case of Kinney v. IBEW, 939 F.2d 690, 695 (9th Cir. 1991), for the proposition that "it would be inconsistent to dilute an award of fees by refusing to compensate an attorney for time spent to establish a reasonable fee." Bank One, 2005 U.S. Dist. LEXIS 31665 at * 9 (even though the appellants pointed out that Kinney did not involve an award under A.R.S. § 12-341.01, the court concluded that the logic of that case still applied). Therefore, Plaintiff is also entitled to his attorney's fees incurred for time spent in preparing his Motion for Award of Attorney's Fees. Lastly, Defendants claim that given their objections that some of Plaintiff's specific time

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entries do not comply with L.R.Civ.P. 54.2, the Court should in turn deny Plaintiff's Motion for Award of Attorney's Fees in its entirety. However, the objection to specific time entries is not a basis for denying the entire request, even if some of Defendants' objections to specific entries are upheld by the Court. Should Defendants prevail on an objection to a specific entry, the proper remedy would only be a reduction in Plaintiff's total attorney's fee amount by that specific entry. E. Plaintiff Is Entitled To Non-Taxable Costs.

Defendants assert that Plaintiff is not entitled to any of his non-taxable costs. To support that proposition, Defendants cite to a case which only specifically excluded "non-taxable costs such as delivery and messenger service charges, copying expenses, telecopier and fax chages, postage, and long distance telephone charges." Ahwatukee Custom Estates Mgmt. Ass'n v. Bach, 193 Ariz. 401 (1999). However, that same case also acknowledges the fact that certain nontaxable costs are recoverable as attorney's fees, such as legal assistant and law clerk services and the cost of computerized legal research. Id. Indeed, that case recognizes that the accepted definition of "attorneys' fees" has been fees charged by an attorney for rendering services that reflect and depend upon the attorney's training and legal skill. Id. Therefore, it is possible for Plaintiff to recover non-taxable costs, and in fact, the court has previously awarded successful parties their non-taxable costs along with an attorney's fee award pursuant to A.R.S. § 12-341.01. See Mardian Equip. Co. v. St. Paul Fire & Marine Ins. Co., 2007 U.S. Dist. LEXIS 16217 (D.Ariz. 2007)(pursuant to A.R.S. § 12-341.01 and A.R.S. § 12-341, the court awarded St. Paul $60,710.53 in attorneys' fees and non-taxable costs); Corley v. Brouws, 2005 U.S. Dist. LEXIS 31491, *8-9 (D.Ariz. 2005)(pursuant to A.R.S. § 12-341.01 the court awarded the defendant his

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attorneys' fees plus non-taxable expenses in the total amount of $8,641.32). III. CONCLUSION. Based upon the foregoing, as well as the Plaintiff's Motion for Award of Attorney's Fees and the supporting affidavits and documentation thereto, Plaintiff is entitled to an attorney's fees award of $313,535.04. RESPECTFULLY SUBMITTED this 13th day of April 2007.

ROSENQUIST & ASSOCIATES By: /s/ Anders Rosenquist Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES Attorneys for Plaintiff Meadowlark Lemon

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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. , 2007, a true and correct copy of the foregoing 2. I hereby certify that on April 13th REPLY TO DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES was delivered via electronic filing to the following parties: 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. and Jackson Ira Sacks, Esq. Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendant GTFM, LLC 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 Robert W. Goldwater, III, Esq. Jason Leonard The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260
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Karl M. Tilleman P. Bruce Converse Jason Sanders Steptoe & Johnson LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson

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 13th day of April 2007 at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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