Law of Cards: Upper Deck v. Upper Deck Goes Nuclear
When I jokingly anointed the Upper Deck v. Upper Deck case a Jerry Springer Show, I had no idea how accurate that description would be. In my past updates on this case, I have always been tempted to write, “Now, with this latest filing, truly Upper Deck has hit the bottom.” Then, each subsequent filing proved how wrong I was.
This time, the battle has escalated. And the best way to describe just how much, we’re going to need to rely on the movie WarGames. It’s now “Global, thermonuclear war.”
The battleground has been marked off and Mr. Richard McWilliam, president and co-founder of the American Upper Deck entities, has fired the first warhead. He claims that Upper Deck International (UDI) and Nico Blauw, UDI’s CEO, ruined his reputation by saying McWilliam was untrustworthy, a bad business person, etc. UDI and Blauw counter that it’s not defamation if it’s the truth, and McWilliam’s defamation claim is actually an abridgement of the freedom of speech because McWilliam is a public figure.
Legal translation: “You called me bad names.” “I did not, I told the truth. Besides, even if I did, you’re famous, so I can.”
Seems like a trivial spat, right? I mean, the rest of the case has to do with millions of dollars in claims flying both ways, and the potential of wresting away control of a multinational company. With that on the line, what’s a little name-calling?
Let’s set the field with McWilliam’s statement:
In 2010, several business associates, friends and co-workers approached me to tell me that they had very disturbing conversations with Mr. Nico Blauw about my capacity and competence to run, operate, and manage Upper Deck and UDI. These individuals, including Jack VanDoorn, informed me that Mr. Blauw attacked my character, spread vicious, untrue lies about the future of Upper Deck and UDI, and fabricated malicious and outlandish stories about me.
OK, pretty tame. So, let’s bring in Mr. Jack VanDoorn to up the ante.
In 2010, Nico Blauw made efforts to expose Mr. McWilliam to contempt, ridicule and disgrace. For example, in about May 2010, Mr. McWilliam was acting in an incapacity manner, unable to know where he was or what was going on around him. Mr. Blauw wanted to take advantage of Mr. McWilliam's incapacitated condition and make a mockery of him to undermine him. Mr. Blauw put Mr. McWilliam outside of the company headquarters on a chair for people to watch him and laugh at him in an incapacity state, unable to control what he was saying. Mr. Blauw did that so that 60 or 70 employees could watch and see that Mr. McWilliam was incapacitated while Mr. Blauw ridiculed him as an incompetent fool…
Mr. Blauw on many occasions sought to embarrass Mr. McWilliam and make a joke of him by spreading false rumors about Mr. McWilliam. For example, Mr. Blauw falsely stated or implied to other people that Mr. McWilliam was the main problem with the company; that he cannot be trusted and is dishonest; that Mr. McWilliam was making a joke of the company; that Mr. McWilliam refused to come visit the company when requested by Mr. Blauw; that Mr. Blauw and not Mr. McWilliam was the one with the business ideas; that Mr. McWilliam is a bad/incompetent owner, executive and member of the business community in Amsterdam; that Mr. McWilliam would bankrupt and shut down the company and terminate all of the employees; that Mr. McWilliam was going to reduce all of the employee salaries, and that Mr. McWilliam was going to sell the company for liquidation.
Well, in response to that, all I can say is, “Colonel, take us to DEFCON 3 and get SAC on the line.”
With the battle lines drawn, UDI and Blauw counter with their own missiles. The first ICBM: the testimony of Philip Van Wijnen:
In 2010, I was present in the office in Weesp on the day that Richard McWilliam arrived there in an intoxicated condition, apparently caused by heavy drunkenness; I remember very clearly that Richard McWilliam and Nico Blauw spent some time outside the office building sitting on chairs. For all I know, Nico Blauw didn’t want Richard McWilliam to enter the building to prevent him from exposing himself in said condition to all the employees present at that time. From what I have seen, Nico Blauw did all to sober up Richard McWilliam as much as possible by giving him bottles of water. I also remember very clearly that Nico Blauw had instructed his PA, Ms. Serap Dag, to make sure that all employees present that day would be staying at their desks in order to avoid them witnessing Richard McWilliam in said condition.
I remember Nico Blauw being rather dismayed by the whole situation. I know Nico Blauw as a person that wouldn’t take advantage of this kind of situation at the expense of others in general and certainly not in the way as set out in the declaration of Richard McWilliam and Jack Van Doorn as mentioned above.
OK, that’s basically point/counterpoint. One Upper Deck paints the story one way, the other Upper Deck paints it a different way.
But wait. UDI and Blauw have more missiles, starting with the testimony of Joeri Clarisse Marcel Hoste:
On the morning of Monday May 31st I was joined by Mr. McWilliam at breakfast at approximately 8.00 a.m., who was clearly intoxicated, with the smell of alcohol on his breath and a noticeable slur in his speech. Despite his intoxicated stated he insisted in joining our meetings that morning in suppliers’ showrooms excusing himself every 15 minutes or so only to grow increasingly intoxicated as the morning progressed. Throughout the morning I witnessed Mr. Blauw manage this delicate situation with a great deal of decorum, respect and patience towards Mr. McWilliam, out of earshot of the suppliers urging him to retire to his room to save Mr. McWilliam and the company from further embarrassment. Mr. McWilliam ultimately retired to his room around noon time. This situation repeated itself with accelerated pace on the morning of Tuesday, June 1st where I even overheard Mr. McWilliam, in his intoxicated state, make an indecent proposal to an employee of one of our suppliers during one of our first meetings that day. Mr. Blauw once again remained calm and respectfully took Mr. McWilliam aside urging him out of earshot of the supplier to consider his behavior and the impact it would have for his personal reputation and that of the company. Mr. McWilliam retired to his room shortly thereafter. I was personally deeply saddened by the public display and mockery that Mr. McWilliam had made of himself in front of our closest and most important business relations and was very grateful that Mr. Blauw had been able to manage the situation with so much more patience and understanding than I ever could have, in order to protect the reputation of Mr. McWilliam and Upper Deck International B.V.
Not happy with just one missile, I mean witness, UDI and Blauw also rely on the declaration of Gregory Benassar:
We had meetings planned every day from breakfast to dinner with all our key customers (vendors, inventors, licensors, key accounts). Every morning starting at breakfast, Mr. Richard McWilliam was clearly under the influence of some substances: difficulties to talk, to walk, to stand up or to follow up a simple discussion. Mr. Blauw diplomatically asked repeatedly Mr. Richard McWilliam to consider taking rest and not to attend our meetings but Mr. McWilliam insisted in joining which lead to very embarrassing meetings where Mr. McWilliam had very unprofessional behavior if not inappropriate in front of and/or towards our customers/suppliers. Due to his obvious intoxicated state Mr. McWilliam decided after 2 or 3 such meetings to go back to his room for rest. That same scenario happened on the morning of May the 31st and June the 1st.
Not even McWilliam’s witness Jack VanDoorn is safe from the collateral damage. As Serap Dag testified:
During Mr. McWilliams’s Amsterdam trips, Mr. Jack van Doorn had always addressed himself to be “special helper” of Mr. McWilliam. Not without a reason obviously. He took advantage of Mr. McWilliams’s drunken situation and created “tasks” to get money out of it.
And, for the final ICBM, bring in Bruno Van Speybroeck:
On December 8-9 2006, Mr. McWilliam participated to the Upper Deck Europe/International Christmas-party, held in Amsterdam. The employees of all European branches were invited and would witness Mr. McWilliam being intoxicated publicly. He was also no longer in control of himself and made inappropriate comments and gestures towards female guests. In one specific case, I had to intervene personally and removed a female guest form the dance floor so Mr. Richard McWilliam would no longer harass her. Mr. and Mrs. Blauw took Mr. Richard McWilliam away from the event site and took him to his hotel or home. This incident was witnessed by over 30 employees and was the gossip of the offices for some time.
At one party, Mr. Richard McWilliam was drunk and harassed one of the hostesses. I apologized in name of Mr. Richard McWilliam towards the hostess and Mr. Nico Blauw brought Mr. Richard McWilliam to his hotel. This incident was witnessed by both employees and some guests. At the last party we hosted, Mr. Richard McWilliam was so drunk he fell over multiple occasions in the middle of the event side and was touching the breast of at least three female guests, including the wife of a CEO of a company we worked with. Once again, Mr. Nico Blauw took care of Mr. Richard McWilliam and removed him from the site. Both Mr. Nico Blauw and myself apologized to the CEO and female guests. At that time Mr. Nico Blauw and myself agreed no longer to host similar events since we could not control Mr. Richard McWilliam and wanted to avoid his public embarrassment and damage to the company and its employees.
As General Beringer in WarGames said, “Alright. Flush the bombers, get the subs in launch mode. We are at DEFCON1.”
While it’s easy to hang on these quotes (and there is more in the briefing and declarations, lots more), it’s too easy to overlook the implication of these statements. Given the animosity here, this case won’t settle. It’s World War III, and will probably go on until one, if not both sides, lay in ruins.
To read all the latest filings, click below:
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