Law of Cards: Early Victory for Upper Deck in Distribution Lawsuit

Law of Cards: Early Victory for Upper Deck in Distribution Lawsuit

Last August, Joseph Pirozzi and  J&T Hobby filed suit against Upper Deck. In a six-count complaint, they basically claimed that UD fraudulently violated a distribution agreement that J&T and UD shared for over 15 years. J&T also tried to name Richard McWilliam personally as an alter ego of Upper Deck.

UD fought back by demurring to all six pled counts.

Legal translation: "Demurrer" is a fancy word for "objection," which is a fancy word for "they're not following the rules." Really, UD objected to J&T's six claims because they allegedly failed to meet various pleading requirements.

Now, if I would walk through each objection claim by claim and why they allegedly don't follow the rules, that would require me to bog this article down in such legal minutiae that I would be shocked if it didn’t melt your eyes from your head.

But don’t worry, I won't do that to you.

UD's objections basically boiled down to allegations that J&T didn’t properly identify the "who, what, where, when and how" were required to proceed with the lawsuit. In addition, UD also contended that J&T's claim regarding Richard McWilliam being named personally shouldn't be allowed because J&T can’t prove McWilliam's personal involvement in the alleged fraud. In other words, they can’t prove McWilliam is the alter ego of UD.

Legal aside: If Richard McWilliam ever becomes a crime fighter, calling himself Upper Deck would be a great name for a superhero alter ego. And I guess it would be a compelling side plot to have a character named JT who is always trying to prove McWilliam is the alter ego of Upper Deck.

Anyway, back to the story.

In December, 2012, the court sustained UD's demurrers of all six claims.

Legal translation: UD blew up all six of J&T's claims, and it didn't even need superhero powers to do so.

The court has allowed the plaintiffs 15 days to try and salvage their case. To do so, they're going to need to plead sufficient facts to explain the "who, what, where, when and how." Since their complaint didn't provide those facts from the get go, it's doubtful they'll be able to dig them up now, especially in only 15 short days.

And if J&T can't allege such facts, then this case is basically over.

A copy of the court's order is here for those who have sufficient superpowers to wade through the painful legal minutiae.

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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