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Law of Cards: Court Reigns in the Upper Deck v Upper Deck Case

Law of Cards: Court Reigns in the Upper Deck v Upper Deck Case

After suffering through hundreds of pages of briefs, declarations, esoteric attorney arguments (like, how this case affects the freedom of speech) and just plain name-calling, the judge in the Upper Deck v. Upper Deck case must have thought, "Enough is enough," because he just whacked the case down to size.

The Jerry Springer experience that was Upper Deck v. Upper Deck is now more manageable.

It's easy to forget that this case started off as a business dispute between the plaintiff, Upper Deck International (UDI), and the defendants, Upper Deck California (UDC) and its CEO Richard McWilliam. It arose in the aftermath of UDI and UDC's previous litigation with Konami. The case, however, started spiraling out of control when UDC countersued UDI and added in UDI's CEO Nico Blauw over Blauw's alleged theft of UDI from McWilliam.

It grew even more unmanageable when McWilliam added defamation claims against Blauw, and then brought Blauw's wife into the action too. The case exploded and lost any sensible contours once UDI raised an ANTI-SLAPP claim against UDC and McWilliam for attempting to abridge their free speech.

Legalese translation: ANTI-SLAPP claims basically seek to prevent people and companies from suing people to silence them. Here, UDI and Blauw basically alleged that the defamation claim by McWilliam was an attempt to prevent them from exercising their freedom of speech. Yeah, kind of a stretch on UDI's part, but easy to lapse into once a case grows out control.

As a wise litigator once told me, "It's difficult for everyone to stay clean once one side starts rolling in the mud."

The case grew more heated with each new brief's accusations of alcohol and drug addiction, name-calling and allegations of people basically fondling others in public.

All from the initial seeds of a business suit.

I have to compliment the judge. In one swift action (OK, a 25-page brief filled with legalese is anything but swift), he lightly cuffed both sides, gently told them to grow up, and then shrunk the case to how it started. All that's left now are UDI's original claims against UDC.

Legalese translation: In one quick order he made it like the last few months never existed. Seriously, if you take UDI's initial complaint, Document No. 1 on the docket, and got rid of everything else after it, that's where we are now. A focused, manageable case.

The judge's reasoning makes sense, too. He didn't want UDC to bring its "slab of unrelated grievances" into the mix because they "would fundamentally re-define what this case is about." It started off as a business lawsuit and it's going to stay a business lawsuit.

In shrinking the case, the court dispensed with UDC's counterclaims in two batches. Concerning the business-type counterclaims, the court did commend UDC for putting "up a good fight" to keep them in, but the court simply wasn't persuaded by UDC's arguments. In his mind, UDC's claims were not related enough to the Konami litigation fallout, so they should not be a part of this suit.

The court was not so kind with the defamation claim. The judge attacked it for initially not going into enough detail, and then got a little bit angry with the defendants for trying to expand the claim too late in the case:

"In his opposition to UDI's motion to strike the claim, McWilliam pleads in essence a very different defamation claim, and neither the Court nor UDI should have to tolerate that kind of inconsistency. In his actual counterclaim, McWilliam alleges that Blauw told associates of McWilliam, members of the business community, and someone named Brian Grey that McWilliam couldn't be trusted and is both dishonest and incompetent. That's it. In his opposition to the motion to strike, however, a new recipient of the defamation comes up (and Brian Grey disappears): a Mr. VanDoorn, identified as UDI's handyman. New defamatory remarks also come up. McWilliam alleges that Blauw said he (1) was the main problem at UDI; (2) was making a joke of UDI; (3) refused to visit UDI when Blauw asked him; (4) took credit for business ideas that were Mr. Blauw's; (5) would bankrupt UDI, shut it down, and terminate all of its employees; (5) was going to reduce the salaries of all UDI employees; and (6) was going to sell UDI for liquidation. First, some of these alleged statements aren't even defamatory. But second, as the Court just indicated, they come out of nowhere in McWilliam's opposition to UDI's motion to strike, when they should appear front and center in that portion of his counterclaim that alleges defamation. There need to be consequences for litigants who file inconsistent and inaccurate pleadings with the Court. Here, the appropriate consequence is to deny McWilliam leave to amend his defamation counterclaim against UDI."

Legalese translation: Judges do not like moving-target arguments. If you assert a position to a judge, do not change it later.

The court also challenged whether the alleged defamatory statements even rose to the level of defamation,

"A slanderous statement for the purposes of this case is one that injures someone in his profession by suggesting either that he is ill-qualified for it or by imputing something to him that will lessen his profits. It's far from clear how Blauw's alleged statement that McWilliam planned to reduce the salaries of UDI employees could be slanderous. It may have been false, of course, but by itself it doesn't carry any substantive critique of McWilliam's job performance. McWilliam also alleges that Blauw put him on a chair in front of company headquarters when he was incapacitated, which subjected him to ridicule. This may be a tort of some kind, but it is very hard to map it onto the elements of slander."

Now, the opinion was not a complete win for UDI. It got slightly slapped by the court when he blew up UDI's ANTI-SLAPP claim mainly because it does not affect a large enough portion of society to count as the muffling of free speech. As he commented, "And while Upper Deck may be a popular company in the narrow circle of those who collect trading cards, in no way is it analogous to the Church of Scientology as 'a large, powerful organization' that 'impact the lives of many individuals.'"

Legalese Translation: The issues in this case don't pose enough of a national concern to warrant slapping UDC with fees and costs for allegedly stifling free speech. I do find it amusing that Upper Deck and the Church of Scientology are discussed in the same sentence and I'm sure there's a joke there. But in the words of one of my favorite comedians, Doug Stanhope, "I'll do more Scientology bashing once I have a stronger legal team."

Now, what does this ruling mean for the case? Three things:

First, UDI won the first major battle. While it got chastised a bit, the case is now focused solely on UDI's claims against UDC. That's a much better position to be in than having both sides volleying causes of action at each other. In cases like that, it's easy for the judge or jury to think both sides are somehow at fault, so no one should win. It's easier for a judge and jury to follow your arguments if you are the only plaintiff.

Second, this decision does not mean that UDC's claims disappear. If UDC wishes to pursue them, it can, just in a different case. So, it's not a complete loss for UDC, but it is in a weaker position in this particular case.

And third, the judge now has a good control over a limited case. He has already informed both sides he doesn't want a "shouting match":

"In one of the news articles that UDI attached to its anti-SLAPP motion, this case is analogized to "a Jerry Springer family dispute." That seems an apt description. There is a real legal dispute here--the Court doesn’t want to minimize that--but some of that dispute has all the characteristics of a pure shouting match."

So, I guess this ruling means a fourth thing: my articles, to which he alluded, are apt.


Good to know there's a judicial seal of approval on calling the Upper Deck v. Upper Deck saga the Jerry Springer Experience for the Trading Card World.

Click here to read the complete 25-page court briefing.

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.

Law of Cards: Court Reigns in the Upper Deck v Upper Deck Case 1Making purchases through affiliate links can earn the site a commission
Paul Lesko has litigated complex and intellectual property actions for over 18 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 card collector. He's also the author of the novel Gastric Bypass, available for purchase at Amazon. Paul can be found on Twitter @Paul_Lesko and Google+.

User Comments

Well, obviously the court has a sense of humor on UDI’s self-professed analogy to the impact of the infamous Church of Scientology
– a group that routinely states inflated membership and world-wide presence – just as UDI inflates own it’s presence on the internet.

“11 The Court repeats this language because UDI bolds it in its own citation to Wollersheim, presumably to suggest that it applies to Upper Deck.”

In the end, those old SLAPP cases did nothing to help Scientology ward off the bad reputation it rightfully deserves.

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