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Law of Cards: Upper Deck v. Executive Trading Update

Law of Cards: Upper Deck v. Executive Trading Update

We're now at the fun part of the Upper Deck (UD) v. Executive Trading (Executive) battle over political trading cards: the parties filed their substantive motions!

Legal translation: OK, political trading cards are not exciting, but the court's docket is now inundated with great filings. There are expert reports that explain what the experts will testify about at trial. There's a Daubert motion from UD which attempts to strike Executive's expert reports so that it'll have less experts at trial. There's a UD summary judgment motion which is actually trying to end the case before trial so that no one even needs experts. And then there are pages of deposition transcripts from both sides.

We finally get to see what's happened over the last year-and-a-half!

The most interesting document is Upper Deck's motion for summary judgment. In this document, UD summarizes the case well (albeit, slanted in its favor) and asks the court to blow up Executive's case before it goes to a jury.

We also get to see UD's theme of the case. In its own words:

This case is about Defendant Executive Trading, LLC’s attempt to scapegoat its’ business failures on Plaintiff the Upper Deck Company, Inc. by claiming, without any legitimate evidence, that Upper Deck stole its concepts and used them to create a set of trading card inserts in its 2012 release of Upper Deck’s World of Sports product, called World of Politics inserts.

Doesn't pull any punches, right?

UD's summary judgment motion, although long and packed with more than 20 exhibits, is actually simple. Basically, all of Executive's claims against UD require Executive to show 1) UD used Executive's trade secrets, and 2) that Executive was hurt by those actions. UD believes there are no facts to support either use or harm, so Executive loses.

This is a motion UD should win. Executive technically thinks it invented political trading cards, and can't really point to anything in particular that's a trade secret or is copyrightable. Heck, at one point it looks like Executive claimed using blue for democrats and red for republicans was its idea.

Another interesting document is UD's expert report from Grant Sandground which provides a good history of political trading cards too. This also eviscerates Executive's position that it invented political trading cards.

From all of these filings, I don't see any evidence of Executive trade secrets that UD stole. To be fair, there are quite a few filings that are under seal (and even the filing I've seen have redactions), so maybe I'm missing something.

I doubt it.

Also, Executive will get a chance to respond to UD's motion, so we'll see more from it there.

Still, I was never high on Executive's chances in this case, and after seeing UD's filings, I'm more in UD's camp (wow, that was weird to type). And it would not shock me if this case is over in the next six months.

Now, if this case does go to trial, and if Executive wins, UD's expert opines that Executive should only be allowed to recover, wait for it, $144 to $201. For a case that lasted a year and half, that's not a big recovery, especially if the case was taken on a contingent fee basis. Heck, that wouldn't cover any of the sides' experts for an hour!

Really though, given this case focuses on inserts, it's probably not far from a correct result. Heck, back in October with what I thought was an overly-generous, back-of-the-napkin calculation, I figured the case was worth no more than $22,500.

So I'm 100 times more generous than UD's expert, but still. That won't cover either sides' experts either.

Executive's damages expert obviously asks for more money, but since that amount is redacted, I can't report it. Or even see it. Which is too bad. I'd like to see what Executive thinks this case is worth.

If I had to guess, it's probably ten to 100 times more generous than even my guess.

To review UD's summary judgment motion, click here.

To review Grant Sandground's expert report, click here.

To review UD's damages expert report, click here.

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.

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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+.

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