Law of Cards: UD Witness Educates Attorney on What an "Insert" Is

Law of Cards: UD Witness Educates Attorney on What an “Insert” Is

The Upper Deck v. Executive case could fill the "crazy case" vacuum left by the settling of Upper Deck v. Upper Deck.

This is the case over Upper Deck's World of Politics cards found in 2011 Upper Deck World of Sports. Basically, Executive claims that it and Upper Deck were going to launch a line of political candidate trading cards. Allegedly, at some point, Upper Deck told Executive it changed its mind. But then Upper Deck released its World of Politics cards as an insert set in its World of Sports product.

Executive claims that the World of Politics infringes its copyrights, was a breach of contract, etc, etc.

The case has been quiet for a while, until this week when Executive Trading filed a motion to compel, seeking --

OK, who cares about the legal stuff going on. Let's get to the fun stuff.

The first bit of fun has to do with the valuation of this case. As I've written before, if Executive wins (and that is a BIGif) it'll get a ridiculously low amount of damages. Why? We're talking about inserts in one product line. Eighteen total cards (nine regular, nine short-printed) out of a set of around 400 cards.And that's if you don't take the autographs and memorabilia cards into account. At best, that's 4.5 percent of the set. I'm not sure what UD made on this set, but even if it made $500,000, we're talking about a back of the napkin calculation of $22,500 attributable to these inserts.

Considering that Executive already took a few depositions and filed a motion to compel, I'm willing to bet its legal expenses already exceed any potential recovery.

Now, if you don't know what an insert is, you're 1) not a collector or 2) not involved in the trading card industry. Don't worry though, because Executive's attorneys don't know what an insert is either. Here’s from the deposition transcript:

UD Executive1 Image

Wow, the people running this case think an insert is a product line. And as I see it, that presents a pretty big valuation problem.

Don't worry, Executive is up to speed now thanks to Grant Sandground, the Upper Deck employee who testified above, for educating them on the definition of "insert."

And I bet they won't pay him for that education.

The second fun note is that it appears to be Executive's theme that UD allegedly ripped off the World of Politics cards from Executive to (at least in part) to fill the vacuum left when UD lost its MLB, NBA and NFL licenses.

Yeah, cards of politicians would make up that shortfall.

The third fun bit of the case is that Executive liberally attaches pages of deposition transcripts to its motion, which, allows us to peer into the trading card world.

The most interesting discussion which comes from the depositions has to do with UD's loss of its NFL, NBA and MLB licenses, and how much revenue those licenses meant to UD.

UD Executive2 Image

UD Executive3 Image

Yikes, potentially losing 75 percent of business? That would make anyone delirious into thinking trading cards of politicians would make back all of that money! No, you're right, nothing would make anyone delirious enough into thinking politician trading cards could make anyone a lot of money.

So, I think you'll agree with me -- given the unrealistic expectations, a lack of grasp on how the industry works, and liberal amounts of deposition transcripts (which are mostly unnecessary given the issues, but give us a great insight into the case) -- this case is the front runner for being our "crazy" to replace the void opened by the settling of the Upper Deck v. Upper Deck case.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department ( 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+.

User Comments

  1. Imagine the fun on politician trading cards. They could have Died In Office or Indicted stripes, like Pro Set football cards had Traded stripes.

  2. They could have a republican and democrat insert like the limited duels but no matter how hard you try they won’t fit together haha I could go on and on. Goalie pull with Obama’s ears, call the redemption cards a government shutdown card. I know it’s Upper Deck article but please Panini if you decide to do a Politican Set let me design it

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