Law of Cards: More Name-Calling in the Upper Deck v. Upper Deck Suit

Law of Cards: More Name-Calling in the Upper Deck v. Upper Deck Suit

The never-ending cycle of Upper Deck v Upper Deck continues!

On January 17, Nico Blauw joined the Upper Deck v. Upper Deck suit, namely to try to keep himself out of it. Mr. Blauw is the head of Upper Deck International (UDI), the company that first sued Upper Deck California. Blauw was personally countersued in that same suit by Upper Deck California's business partner, Upper Deck Nevada (yes, this is still confusing even after four articles).

Mr. Blauw basically argues that because he lives in the Netherlands, works in the Netherlands, and because UDI is in the Netherlands (and the purchase agreement through which he bought UDI says that any lawsuit about the purchase of UDI should be brought in the Netherlands), that having him and a suit in California makes no sense.

Legal translation: Mr. Blauw has nothing to do with California, and UD Nevada's counterclaims only have to do with the Netherlands. Because of this, the claims against Mr. Blauw (and UDI ) will likely be removed from the California action.

OK, now that we have the legalese and legal analysis out of the way, let's get to the good stuff: the name-calling.

And Mr. Blauw's attorneys comply.

UD Nevada is trying to keep Mr. Blauw in the lawsuit because of Mr. Blauw's trips to California. Mr. Blauw argues this is an unfair argument because these trips were made at the request of UD California and Mr. McWilliam:

In fact, the FACC alleges that those trips were not made of Mr. Blauw's own choosing but were allegedly thrust upon him because Mr. McWilliam, who was supposed to be running things, had allowed himself to fall into serious troubles with his drug addiction.  FACC 53 (“Mr. McWilliams did not have the capacity to manage requested Mr. Blauw [do so] in Carlsbad, California."), 55, 65 (“Mr. Blauw was fully aware of Mr. McWilliam's impaired state; in fact, it was the very reason why Mr. Blauw was even present in the United States at the time.  During this time, Mr. Blauw was again in California managing UDC and UDI remotely because Mr. McWilliam's health issues prohibited him from running the businesses himself."). It would be unpalatable indeed to say that Mr. Blauw had made his “home" in California for general jurisdiction purposes simply by making emergency trips to California at Mr. McWilliam's urging." (emphasis added).

Mr. Blauw also argues that “If there was any purposeful injection by Mr. Blauw into California, it was very limited and necessitated by Mr. McWilliam's drug abuse, which forced Mr. Blauw to come to California to deal with Mr. McWilliam's problems."

Legal translation: Well, besides repeatedly calling Mr. McWilliam a drug addict, Mr. Blauw's trips to California shouldn't count against him because they were in response to UD California and Mr. McWilliam's request. It would be unfair to now hold those trips against him.

UD Nevada's defamation claim also gets trashed as “incoherent" (to be fair, the defamation claim does not identify the defamatory statements, so it is difficult to assess whether the defamatory claim is valid or not), and it is pointed out that although “McWilliam was somehow incapacitated when he entered into that agreement," it should be noted that he “apparently just realized that now, a year later…."

Everything else in Mr. Blauw's motion is overly technical and legal--and because of that boring. So, we won't cover it here beyond saying Mr. Blauw's motion will likely succeed. Should the litigation move to the Netherlands, he'll likely win another lawsuit.

And really, given the Jerry Springer experience the rest of the lawsuit has been, simply calling someone a “drug addict" may seem tame. But fret not. UDI and Mr. Blauw's attorneys also filed a motion to strike the defamation claim with better name-calling.

You can tell it's going to be good when it starts off by pointing out, “This suit is a personal vendetta by McWilliam to attempt to slap Mr. Blauw for statements he allegedly made while CEO of UDI."

Vendetta!

I love this motion because, while it tries to kick the defamation claim out of the lawsuit, it gives us a chance to re-hash what the potential defamatory statements might be. For example, “McWilliam seeks to punish UDI and Mr. Blauw for allegedly stating that McWilliam is dishonest and/or a bad or incompetent owner or business executive." I've added the emphasis.

The “allegedly" language is great (one of my favorite words) because there is no admission that Mr. Blauw actually stated that McWilliam was “dishonest."  But if he did, the motion provides support to back up the alleged statement like, “regarding McWilliam's honesty, he is the leader and owner of an adjudicated counterfeiter…orchestrated the Yu-Gi-Oh! counterfeiting scheme…[a]nd McWilliam even signed…a declaration…in which McWilliam admitted he lied to Mr. Blauw about UDC's central involvement in this counterfeiting scheme."

Legal translation: I never called him a liar, but the shoe just might fit.

I also love this motion for more personal reasons: it cites Cardboard Connection articles about Upper Deck, including one of mine.

7. Attached hereto as Exhibit 6 is a true and correct copy of an article entitled Upper Deck's Legal Battle With Konami Heats Up, by Mike Smeth, dated January 12, 2010…

13. Attached hereto as Exhibit 12 is a true and correct copy of an article Upper Deck International Sues Upper Deck, by Paul Lesko, dated August 11, 2011…

Legal translation: Guess someone at one of the Upper Deck companies (or their attorneys) actually reads our stuff.

Wait a second.

Does that mean I've somehow been brought into the Jerry Springer experience that is the Upper Deck v. Upper Deck suit? I've finally arrived!

Beyond the name-calling, the motion to strike will likely work. The defamation claim is too vague to determine what it's about. Plus, it was procedurally brought too late. There are a lot of facts provided that support any “alleged" statements about “dishonesty" or an “incompetent" business owner. If, of course, such “alleged" statements were actually made.

The best news out of all of this, there's a hearing set on February 21 on these issues. Let's hope there's a publicly available transcript from these hearings so we can get more name-calling!

The information provided in Paul Lesko's “Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Browder Gianaris Angelides & Barnerd LLC or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.

The views expressed in the “Law of Cards" column are solely those of the author and are not affiliated with the Simmons Law Firm. You should not act or rely on any information in the “Law of Cards" column without seeking the advice of an attorney. The determination of whether you need legal services and your choice of a lawyer are very important matters that should not be based on websites or advertisements.

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Paul Lesko has litigated intellectual property for over 15 years. Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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