Free Reply in Support of Motion - District Court of Arizona - Arizona

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STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Telephone: 602 257-5200 Facsimile: 602 257-5299 Karl M. Tilleman 013435 P. Bruce Converse 005868 Jason Sanders 018600 Attorneys for Defendants Harlem Globetrotters International, Inc. and Mannie L. and Catherine Jackson DREIER LLP 499 Park Avenue New York, New York 10022 Telephone: 212 328-6100 Facsimile: 212 328-6101 Ira S. Sacks, admitted pro hac vice Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Meadowlark Lemon, et a!., Plaintiffs, vs. Harlem Globetrotters International, Inc., et al. Defendants. DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR A NEW TRIAL ON LIABILITY AND COMPENSATORY DAMAGES Nos. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC

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In his Response, plaintiff concedes that Defendants introduced uncontroverted evidence that GTFM paid Samsung a fee for numerous services rendered of 13% of the wholesale revenue of the Globetrottgpparel that it sold. Plaintiff also concedes that Defendants introduced uncontroverted evidence that GTFM's overhead costs were 17% of wholesale revenue. Plaintiff also concedes that Defendants introduced

uncontroverted evidence of GTFM's actual cost of goods sold for each of the five styles of FUBU apparel that bore plaintiff's name. unsupported by a single case citation
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Plaintiffs sole argument

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is that the jury was free to ignore and

completely disregard the undisputed evidence of GTFM's actual costs in calculating Defendants' net profits. The cases cited by Defendants and ignored by plaintiff

have repeatedly rejected that argument and make clear that where, as here, the jury completel.y disregards the undisputed evidence, a new trial or remittitur is required. See also First Alliance Mortgage Co. v. Lehman Comm. Paper, Inc., 471 F.3d 977, 1001 9th Cir. 2006 trial court abused its discretion in denying defendant's motion for a new trial or remittitur where "the jury award was not based on proper consideration of the evidence" cited by plaintiff. The trial court's "power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of jury trial, has long been regarded as an integral part of trial by jury as we know it." Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 9th Cir. 1987 cited by plaintiff. That is precisely what is required here. I. PLAINTIFF MISSTATES THE STANDARD FOR A NEW TRIAL OR A RFMITI'ITUR. The parties agree that this Court may grant Defendants a new trial or a remittitur if the verdict is "contrary to the clear weight of the evidence" or if the "amount of

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compensation awarded is excessive." Resp. at 1; Mot. at 1-2, citing Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 9th Cir. 1976 Plaintiffs own case law also confirms

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that the trial court may overturn an excessive verdict and grant a new trial "even if substantial evidence supports the jury's verdict." Silver Sage Partners, Ltd. v. City of

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Desert Hot Springs, 251 F.3d 814, 819 9th Cir. 2001 cited by plaintiff. Plaintiff further agrees that this Court "may weigh the evidence and assess the credibility of witnesses" in determining whether a new trial or remittitur should be ordered under "federal standards developed under Rule 59." Resp. at 2, 6 Plaintiff erroneously suggests, however, that Defendants must prove that the jury acted out of "passion and prejudice" and that the verdict is so unreasonable that it "shocks the conscience" of the court. Resp. at 6 The "shocks the conscience" test is the Arizona state standard for setting aside a verdict entirely on grounds of passion and prejudice
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an alternative ground for a new trial under Ari. R. Civ. P. 59a7.

Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 370 1962 citing the "shock the conscience" language as the "yardstick" for determining whether a verdict is so excessive as to indicate passion and prejudice; Hutcherson v. City of Phoenix, 192 Ariz. 51, 57 1998 citing the "shock the conscience" language as the standard for determining passion or prejudice. Defendants have not moved for a new trial on grounds of passion or prejudice. Instead, under Fed. R. Civ. p. 59, Defendants have moved for a new trial and a remittitur on grounds that the verdict is against the weight of the evidence and is excessive. See Seidman v. American Airlines, Inc., 923 F.2d 1134, 1140 5th Cir. 1991 trial court properly remitted jury verdict that it found "was not a result of the passion and prejudice ofthe jury but was merely excessive". The Arizona state rules provide for the same relief. Ariz. R. Civ. P. 59a5 provides for a new trial where the damages awarded by the jury are excessive. Ariz. R. Civ. P. 59a8 provides for a new trial where the jury's verdict is "not justified by the evidence." Accordingly, even if this Court were to decide this motion by applying Arizona state law, the result would be the same. See Flieger v. Reeb, 120 Ariz. 31, 33 App. 1978 verdict is excessive if it is not "within the range of credible evidence" cited by plaintiff; Hubbard v. Oliver, 2004 WL 3164809 Ariz. Super. 2004 granting a remittitur where "the verdict was excessive and contrary to the evidence
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presented at trial". See also Leavey v. UNUM/Provident Corp., 2006 WL 1515999, at
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10 D. Ajiz. 2006 although the jury's liability determination was not the result of

passion and prejudice, the verdict was excessive and required a new trial or remittitur cited by plaintiff. II. THE JURY CANNOT DISREGARD UNDISPUTED EVIDENCE OF GTFM'S COSTS. In their moving papers, Defendants cited numerous cases demonstrating that a new trial or a remittitur is required by Rule 59 where the jury's verdict is against the weight of the evidence or excessive. Mot. at 3-4 Plaintiffs response does not

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mention a single one of those cases, let alone make any attempt to distinguish them. Plaintiff's failure is understandable. The cases are indistinguishable and demonstrate that a new trial or a remittitur must be granted in the factual circumstances presented here, where the jury awards a plaintiff damages equal to the total amount of a defendant's gross sales without reducing that number by any amount, notwithstanding undisputed evidence of the defendant's manufacturing costs. See Watec Co, Ltd. v. Liii, 403 F.3d 645, 655 9th Cir. 2005; The Daisy Group, Ltd. v. Newport News, Inc., 1998 WL 796473, at *2.4 S.D.N.Y. 1998; Plain Jane, Inc. v. Lechters, Inc., 1995 WL 608483 at *56 E.D. La. 1995. Plaintiff muses that the jury's inflated verdict is justified because the jury was free to ignore and completely disregard the uncontroverted evidence of GTFM's manufacturing, distribution, and overhead costs. Plaintiff argues that the jury could ignore the uncontroverted evidence because Defendants were supposedly required "to convince the jury of the amount of their costs, whether or not Plaintiff submitted contradictory evidence." Resp. at 7 In doing so, plaintiff confuses the criminal law "beyond a reasonable doubt" standard with the civil "preponderance of the evidence"

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standard.

Under the criminal law standard, a jury is free to determine that even

uncontroverted evidence is not strong enough to be beyond a reasonable doubt. The civil law preponderance standard is different.
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Defendants were not required to
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"convince" the jury of GTFM's costs beyond a reasonable doubt; they only had to present legally sufficient evidence showing that it was "more probably true than not true" that GTFM incurred those costs. In addition, the cases cited by Defendants
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and ignored by plaintiff

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soundly reject plaintiff's claim that the jury could simply choose to disregard the undisputed evidence of GTFM's costs. For example, in Daisy Group, the defendant argued that it was entitled to a new trial or a remittitur because the jury failed to take into account its costs when calculating its profits on infringing goods. 1998 WL

796473 at *2. The defendant's senior vice president testified during trial about the defendant's production and distribution costs and its variable operating expenses. Id. As here, the plaintiff "did not present evidence contradicting this testimony." Id. at *3 The plaintiff in Daisy Group also made the identical argument made by plaintiff in this case: that the verdict was "not against the weight of the evidence because the jury was free to disbelieve" the vice president's testimony about the defendant's expenses. Id. The court disagreed. The court held that, even though the defendant had the burden to prove its expenses by a preponderance of the evidence, the jury "had no basis to conclude that [defendant] did not meet its burden of proving proportional expenses," in part because the vice president's testimony "as to the amount of the expenses was uncontradicted." Id. at 4. The court thus ordered a partial new trial on damages because the verdict "exceeded the maximum amount of profits supported by the record," and "was against the weight of the evidence and clearly erroneous." Id. The court in Plain Jane also flatly rejected the argument made by plaintiff in this case. 1995 WL 608483 at *5 In Plain Jane, the trial court granted the defendants a remittitur because, as in this case, the defendants had "presented legally sufficient evidence [of] their direct expenses incurred in producing their products." Id. The court specifically held that "the jury had no authority to refuse to deduct defendants' direct expenses from their revenues to reach its award of defendants' profits." Id. See also Watec, 403 F.3d at 655 finding that the jury's verdict "was not supported by, and in
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fact completely ignores and rejects, the evidence," because the jury "awarded the entire gross sales figure to plaintiff'. These cases make clear that, even though Defendants may have had the burden to demonstrate GTFM's costs by a preponderance of the evidence, the jury cannot just ignore the "legally sufficient" and uncontradicted evidence of those expenses. Plaintiff has not cited a single case that says otherwise. A. It Is Undisputed That GTFM Paid Samsung a 13% Fee.

Defendants presented undisputed testimony from Mr. Weisfeld and Mr. Blenden that GTFM paid Samsung a fee equal to 13% of the wholesale revenue of the Globetrotters clothing sold by GTFM. Mot. at 6-7 Contrary to plaintiff's claim, this was not "general testimony" about an "approximate" cost. Resp. at 7 Mr. Weisfeld and Mr. Blenden each specifically testified that the 13% payment to Samsung was an actual cost incurred by GTFM for financing, shipping, warehousing, invoicing, collecting, and other back office functions performed by Sanisung. 1/25/07 am tr. Ex. ito Motion at 28:10-19, 29:14-23; 2/6/07 tr. Ex. 3 to Motion at 170:14-171:1 Mr. Blenden confirmed that GTFM paid Samsung a fee of "13 percent of the wholesale price of the goods sold by GTFM." 2/6/07 tr. Ex. 3 to Motion at 170:19-24 Mr. Weisfeld likewise testified that GTFM actually made a "13 percent contractual payment to Samsung." 1/25/07 am tr. Ex. 1 to Motion at 58:7-10 Plaintiffs counsel even confirmed during his cross-examination of Mr. Weisfeld that GTFM's "contractual payments to Samsung is 13 percent." 1/25/07 pm tr. Ex. 2 to Motion at 31:7-8 There was no contrary evidence presented, nor any suggestion that this fee was in some way an "example" or an "approximate" cost. Defendants presented uncontroverted evidence demonstrating that GTFM paid Samsung a fee equal to 13% of the wholesale revenue of the Globetrotters clothing sold by GTFM. As in Daisy Group and Plain Jane, the jury had no right to refuse to deduct this actual expense from GTFM's gross revenues $101,907 of the $783,900.
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B.

It Is Undisputed That GTFM Incurred Overhead Costs Of 17%.

Plaintiff does not dispute that GTFM's overhead is a recognized and reasonable deduction. Plaintiff merely claims again that the jury was free to disregard the

uncontroverted testimony that GTFM's overhead costs are 17% of wholesale revenue. Resp. at 8 Contrary to plaintiff's suggestion, the 17% overhead number was not

picked out of thin air. Id. at 7-8 Mr. Weisfeld testified that the 17% overhead is based on GTFM's historical "patterns and prices and sales." 1/25/O7 am tr. Ex. 1 to the Motion at 57:19-24 See also Lawton v. Gorman Furniture Corp., 282 N.W.2d 797, 801 Mich. App. 1979 "normal overhead costs" must be subtracted from gross sales. Defendants presented undisputed testimony that the 17% overhead represented the cost of "running the office and the selling, the cost associated with selling the product, managing the product. For example, salaries, advertising, back office, and everything associated with making the product and selling it." Id. at 58:17-21 This testimony was uncontroverted; there was no reason nor any requirement for Defendants to introduce additional "documentary evidence" or provide a written "list" of what comprised GTFM's overhead. Resp. at 8 As plaintiff concedes, it is undisputed that the 17% overhead was actually "required to manufacture, market, and sell all of the items in the Globetrotters line." Id.; 1/25/07 am tr. Ex. ito the Motion at 58:22-24 As with the 13% Samsung fee, plaintiff did not present any contrary evidence from any witness. Accordingly, as in Daisy Group and Plain Jane, the jury had no right to ignore the undisputed evidence that part of the costs incurred by GTFM in producing and selling the Globetrotter line included GTFM's 17% overhead $133,263 of the $783,900.' Plaintiffs claim that the "problem" with Mr. Weisfeld's and Mr. Blenden's testimony is that they are biased witnesses who would personally benefit from a reduction in the damages award is absurd. Resp. at 7-8 Plaintiff's counsel devoted a substantial amount of trial time arguing that GTFM insisted on and obtained an indemnity provision from HGI that completely shields GTFM and its officers from any monetary liability in this case.
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C.

Defendants Presented Undisputed Evidence of GTFM's Actual Cost of Goods Sold.

The jury also ignored the undisputed testimony and documentary evidence of GTFM's actual cost of goods sold for each of the five styles of FUBU apparel that bore plaintiff's name, as listed on Trial Exhibit 24. Plaintiff erroneously claims that the jury was free to disregard GTFM's actual cost of goods sold because the analysis of

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GTFM's actual costs comes from "only one piece of evidence, trial exhibit 1094A." Resp. at 9 Plaintiff also tries to downplay the significance of Trial Exhibit 1094A by claiming that it is "merely a summary exhibit," and argues that Defendants somehow failed to satisfy the preponderance of the evidence standard because not all of the

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underlying sales detail reports were admitted into evidence.

Id. at 9-10 That is

nonsense. As demonstrated in Defendant's motion, this Court ruled during trial that 12 13 14 15 16 17 Trial Exhibit 1094A is "an accurate summary" of the voluminous sales detail reports 2/6/07 tr. Ex. 3 to the Motion at 238:21-239:6, which undisputedly contain GTFM's actual costs to manufacture these clothes. The Court further ruled counsel agreed
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and plaintiffs

that because Trial Exhibit 1094A was admitted under Rule 1006 as

an accurate summary of voluminous documents, the Defendants did not "have an additional burden to put in the supporting materials." Id. at 239:4-7 That is the purpose of Rule 1006.

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Plaintiff does not contest that the undisputed testimony at trial demonstrated that Trial Exhibit 1094A contains the analysis of GTFM's actual costs. 1/25/07 am tr. Ex.4 at 60:22-24, 64:7-10 Exhibit 1094A is not an estimate. It is based upon

GTFM's actual sales detail reports that set forth GTFM's actual costs for each of the individual styles.2 Id. at 44:6-18, 60:25-61:2 Plaintiffs counsel did not cross-

examine Mr. Weisfeld about the calculations and analysis done in Trial Exhibit 1094A. Nor does plaintiff take issue with them in his response. Accordingly, it remains

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Those sales detail reports were available in court as Trial Exhibits 1011 style H3002, 1021 style H3347, 1017 style H3335, 1023 style H3351 and 1015 style H3352.
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undisputed that Trial Exhibit 1094A summarizes the revenue information from the sales detail reports, and the manufacturing costs per unit for each style, and then calculates the actual percentage of GTFM's cost per individual garment. Mot. at 9 It also remains undisputed that the actual percentages found in Trial Exhibit 1094A provide the basis for calculating GTFM's net profits for each of the relevant styles on Trial Exhibit 24:
Style H30033 H3347 H3335 Units 8160 3600 360 Revenue! Unit $22.90 $36.94 $34.07 Total Revenue $186,864 $132,984 $12,265 $125,496 $122,004 Samsung Payment 13% 13% 13% 13% 13% General Overhead 17% 17% 17% 17% 17% LDP% 52.76% 34.37% 45.49% 38.53% 35.04% Total Costs 82.76% 64.37% 75.49% 68.53% 65.04% Profit % 17.24% 35.63% 24.51% 31.47% 34.96% Profit $32,215 $47,382 $3,006 $39,494 $42,653 $164,750

H3351
H3352 Total

3600
3600

$34.86
$33.89

Plaintiff has never disputed a single number found in this chart. The undisputed testimony and trial exhibits therefore conclusively prove that GTFM's net profits on the sales of the five styles of FUBU apparel bearing plaintiff's name were $164,750. Plaintiff has never offered anything in rebuttal.4 The case law cited by Defendants As Mr. Blenden explained, the reference to H3003 in Trial Exhibit 24 was a typo. There was no such style. It should have been H 3002. 2/6/07 tr. at 200:5-18. Without any citation to the record, plaintiff claims that the jury was free to ignore the undisputed evidence of GTFM's actual costs of goods sold because evidence was presented that HGI attempted to have GTFM's records audited, and that sales regarding style H3002 "were purposely underreported by Defendants in trial Exhibit 24." Resp. at 11 The undisputed testimony, however, was that the audit had nothing to do with the accuracy of the records provided by GTFM, and did not reveal any inaccuracies in GTFM's recordkeeping. 1/24/07 am tr. at 44:11-12 confirming that GTFM's reports were "entirely accurate and acceptable"; 1/24/07 pm tr. at 112:16-18 confirming that the audit had nothing to do with the accuracy of GTFM's records. Likewise, although plaintiffs counsel may have argued the point, there was no testimony that any sales were purposely underreported by Defendants. It is therefore not surprising that plaintiff did not cite anything in the record to support that claim.
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makes clear that Defendants satisfied their burden of providing legally sufficient evidence of GTFM's actual costs. The Court should not permit the jury's verdict to stand where it clearly fails to take any deduction for these undisputed costs. III. THE JURY'S CONCLUSION THAT EACH SALE OF FUBU APPAREL BEARING PLAINTIFF'S NAME WAS MADE ONLY BECAUSE PLAINTIFF'S NAME APPEARED ON THE BACK FLIES IN THE FACE OF THE UNDISPUTED EVIDENCE. The jury's decision that plaintiff is entitled to the gross sales of every single sale of FUBU apparel bearing his name is clearly against the weight of the evidence. Contrary to plaintiffs assertion at 12, Defendants are not in this motion claiming that

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the compensatory damages award must be reduced to zero. However, it is inconceivable that the jury could reasonably conclude, given the undisputed testimony set forth in Defendants' motion, that each and every sale of the styles bearing plaintiffs name was made only because plaintiffs name appeared on the back, and that no sales were made because of the FUBU or Globetrotters marks, or the syling, coloring or price of the apparel. Defendants introduced uncontroverted testimony that

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FUBU's core consumers

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15 to 30 year old urban, rap music fans

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do not buy

FUBU apparel because a player's name is on the back. Mot. at 10 Indeed, the oldest of that core consumer was born in 1977, and was 2 years old when plaintiff last played his full season for the Globetrotters. Defendants also presented testimony establishing that FUBU's consumers bought the Globetrotter jerseys for all kinds of reasons other than the fact that plaintiffs name happened to be on the back. Id. Plaintiff offered nothing in rebuttal that would have permitted the jury to conclude that every sale was made solely because of plaintiffs name. As it did with the cost evidence presented by Defendants, the jury simply chose to ignore and disregard the uncontroverted testimony. The trial court has an obligation "to ensure that the compensatory damage award finds support in the record and that the jury did not abandon analysis for sympathy." Evans v. Port Authority of New York and New Jersey, 273 F.3d 346, 352 3d Cir. 2001. This jury did exactly that. Accordingly, the
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court should grant a new trial or, alternatively, a remittitur in the amount of at least half of the remaining net profits permitted by the court after a reduction for GTFM's costs. IV. THE JURY'S CONCLUSION THAT PLAINTIFF DID NOT CONSENT TO THE USE OF HIS NAME ON THE FUBU APPAREL IS AGAINST THE CLEAR WEIGHT OF THE EVIDENCE. As demonstrated in Defendants' Motion for Judgment as a Matter of Law, the clear weight of the evidence is that plaintiff consented, both contractually and through his conduct, to the use of his name on the FUBU apparel. Plaintiffs response to

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Defendants' Motion for New Trial makes the same arguments as those set forth in plaintiffs response to Defendants' Motion for Judgment as a Matter of Law. Accordingly, for the sake of brevity, Defendants incorporate their Reply in Support of Motion for Judgment as a Matter of Law as though fully set forth here. Defendants maintain their position that this Court should rule, as a matter of law, that plaintiff consented to the use of his name on the FUBU apparel. Alternatively, Defendants

respectfully request that the Court grant them a new trial on the issue of whether plaintiff consented to the use of his name on the FUBU apparel. Conclusion For the foregoing reasons, the Court should vacate the compensatory damages verdict against the Defendants and grant Defendants a new trial, or alternatively, a remittitur of the damages awarded to plaintiff to at least $82,375, but certainly no more than $164,750.

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1 2 3 STEPTOE & JOHNSON LLP By: /s/ Karl M. Tilleman Karl M. Tilleman P. Bruce Converse Jason Sanders 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 kti1lemansteptoe .com pbconversestevtoe.com jsanderssteptoe.com Attorneys for Defendants Harlem Globetrotters International, Inc., Mannie L. Jackson, and Catherine Jackson and DATED this 26th day of March 2007.

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DREIR LLP

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in

By:

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/s/ Ira S. Sacks with permission Ira S. Sacks 499 Park Avenue New York, New York 10022 isacksädreierllp.com

Attorneys for Defendant GTFM, LLC

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CERTIFICATE OF SERVICE I hereby certify that on the
26th

day of March 2007, a true and

correct copy of the foregoing Motion 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 A. Anand: sanandedreierllp.com Florence M. Bruemmer: fiorencebruemmerlaw.com Edward R. Garvey: garveygmmattorneys.com, Christa 0. Westerberg: westerbergämmattornevs.com mcnei1äigmmattorneys.com Robert Williams Goldwater III: rgWgoldwaterlaw.com Ray Kendall Harris: rharrisefclaw.com mtolliveräfclaw.com Joel Louis Herz: joelejoelherz.com, paralegalioelherz.com Alec R. Hillbo: ahillboöfclaw.com dperkinscfciaw.com Brandon Scott Peters: bpetersWforthepeople.com bpetersägoldwaterIaw.com blundeenügoldwaterlaw.com Anders V. Rosenquist Jr: avrlrcox.net Ira S. Sacks: isacksdreierllp.com Clay M. Townsend: ctownsendcforthepeople.com vbraeleyäforthepeople.com lcowanWforthepeople.com Jason R. Leonard: jason.leonardirlhelps.com infogo1dwater1aw.com stacie.schuckjrlhelps.com
,

io
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By:

/s/ Karl Tilleman Karl Tilleman

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