Paul Lesko’s “Law of Cards” columns have been a useful guidepost for sports collectors for several years. As an attorney who has litigated intellectual properties for more than 15 years, the Missouri resident knows a thing or two about trademarks, copyrights and lawsuits. And there have been plenty involving card companies.
But there’s one lawsuit Lesko won’t be writing about. And that’s because he’s the one filing the legal documents.
On August 26, Lesko filed a class action petition in the Circuit Court of Jefferson County, Missouri, against the Topps Company. Lesko alleges in the 21-page document that Topps, through its Topps Now product line, offered a specific card for sale but refused to provide it to its purchasers. Lesko is seeking damages not to exceed $4,999,999 and attorney fees, according to court documents.
At issue is what Lesko thought he was buying on July 20: a Pittsburgh Pirates card announcing that “John Harrison trots home after triple & error for walk-off W.” The card references Harrison’s leadoff triple to center field off Tyler Thornburg on July 19 that became the game-winning run in Pittsburgh’s 3-2 victory against Milwaukee when Scooter Gennett made a throwing error. Here’s the snag: there is no John Harrison. As dedicated baseball fans know, the second baseman’s correct name is Josh Harrison.
Lesko, a playful sort who loves collecting error cards, immediately purchased a copy of Card No. 264 (Harrison) for Topps’ standard price of $9.99. He claims it was the first misprint in the Topps Now series, an on-demand trading card product where specific cards are offered during a 24-hour period to the public. These cards highlight a player who had a big night, reached a milestone or achieved a baseball rarity (such as a no-hitter, for example).
According to court documents, Topps corrected the error four hours after the sale began in an unannounced move, substituting a “Josh” Harrison card for the “John” Harrison version.
That’s not the card Lesko wanted, and he contacted Topps’ customer service via email. Topps told Lesko he would not be getting the “John” Harrison card; after trying to sort it out with the card company’s legal department and mentioning his situation on Twitter, Lesko decided to file suit.
Predictably, neither side is talking about the litigation.
“Pains me to take my own advice, but I can’t really comment on the suit,” Lesko said via direct message on Twitter. “Not my forte keeping my opinions to myself.
“But it should be apparent from the filing (I hope) that the goal is to get me, and everyone who ordered a ‘John’ card the option to get the card they ordered.”
In an interview with the website Courthouse News Service, Lesko’s attorney Brandon Wise characterized the transaction as a “bait and switch.”
“It’s kind of sad that it’s gotten to the point where we had to file a lawsuit,” Wise said. “But if you think about it, it’s kind of a bait and switch, where Topps offered to sell one thing and then delivered another.”
Topps has not commented on the lawsuit but one could reasonably expect they will argue the mistake is simply in the promotional image. Lesko’s suit says Topps added a line stating “not responsible for typographic/printing errors” to its NOW order pages after he tried to get them to send a John Harrison card.
“Upon information and belief, to this day, Topps has not addressed this issue with the purchasers of the Topps Now card No. 264,” Lesko claims in his lawsuit.
Lesko, a St. Louis Cardinals fan, said his error card collection to a true collector is “likely uninteresting.”
“But I find that non-collectors respond to it well,” he said.
His favorites are cards of Jordan Swagerty — a Cardinals prospect — whose autograph cards in the 2010 Donruss Elite Extra Edition Baseball set carry stickers actually signed by pro basketball Hall of Famer Magic Johnson. Due to a production error, eight different types of cards include Magic-signed stickers.
“And of course, the Billy Ripken (error) card,” Lesko said, referencing the 1989 Fleer card that showed Ripken holding a bat that had an obscenity scrawled on the handle.
Lesko was hoping to add “John” Harrison to his collection. It’s now up to the legal process to determine whether he will.