HILLSBORO, Mo. (CN) — A collector of rare baseball cards claims in a class action that he paid top dollar for a misprinted card and Topps pulled a bait and switch and sold him a normal card through its website.
Topps, founded in 1938, scored its first big hit with Bazooka bubblegum, sold a piece at a time packaged with a tiny comic strip. In 1952 it began selling flat pieces of gum inside packs of baseball cards, with color photos of players on the front and statistics on the back. The cards became wildly popular, and an icon of the 1950s. It had an effective monopoly until 1981 when Fleer entered the market. Fleer had won an antitrust case against Topps in the mid 1960s, but sold out to it.
Topps was preceded in the baseball card market by Morris Shorin’s American Leaf Tobacco, which sold cards featuring the first generation of baseball heroes, such as Ty Cobb and Honus Wagner. When Shorin’s sons took over, they reorganized and renamed the company Topps.
A 1948 American Leaf card of Honus Wagner — taking a chew of tobacco — was for sale through collectors’ websites Wednesday morning for $89,000. A Topps 1968 Rookie Card of Nolan Ryan had an asking price of $1.4 million.
Paul Lesko, who sued The Topps Co. on Aug. 26 in Jefferson County Court, specializes in error cards. Rather than trading on the playground, in the traditional manner, Lesko buys cards online.
When the 2016 season began, Topps offered a new, online service called “Topps Now,” which sells specific cards, rather than random collections, as in traditional packs.
Lesko says he bought Card No. 264 on July 20, a Pittsburgh Pirates John Harrison card. He bought it because it’s a misprint — the Pirates’ second baseman is named Josh. It was the first misprint in the Topps Now series, which makes it especially valuable, Lesko says in the lengthy complaint.
He does not reveal how much he paid for it, but he says Topps sent him a corrected Josh Harrison card.
That’s not what he wanted, and it’s not what Topps offered, Lesko said, so he sued.
Lesko’s attorney Brandon Wise said in an interview that Topps’ customer service department told his client it would not send him a John Harrison card. Lesko — also an attorney — tried but failed to work it out with Topps’ legal department.
“It’s kind of sad that it’s gotten to the point where we had to file a lawsuit,” Wise told Courthouse News. “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.”
Wise said there’s no way to know how much the error card is worth. He said Topps reported on its website that it has sold 319 of the Harrison cards,
“Being a Cardinals fan, if Card No. 264 was not an error card, he would not have purchased it,” Lesko and Wise say in the lawsuit.
The complaint states that contrary to its own policy, Topps replaced the John Harrison image with the Josh Harrison card image after the John Harrison card was on sale for about four hours.
Seeing this, Lesko immediately tweeted and emailed Topps to tell it his intent was to buy the 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,” the complaint states.
Aside from error cards being more valuable, Lesko says supply and demand drives the John Harrison card value even higher, as only 319 were sold.
“It logically follows that an error card in such limited quantities (or even less considering Topps offered the ‘John’ Harrison card for sale for less than four hours) would be extremely valuable on the secondary market and to collectors, especially where Topps is doing everything it can to not release the card,” the lawsuit states.
Lesko claims that Topps changed its disclaimer a month after the John Harrison sale, “in an apparent admission of liability,” to read: “ALL SALES ARE FINAL. PRINT RUNS REVEALED AFTER 24 HOUR WINDOW. SHIPS IN 3-5 BUSINESS DAYS. ART SUBJECT TO CHANGE. NOT RESPONSIBLE FOR TYPOGRAPHIC/PRINTER ERRORS.”
Lesko says the disclaimer had not been published when he bought the John Harrison card and that it was placed in response to his contact with Topps. He says he reasonably relied on the image when he bought the John Harrison card.
“It is unreasonable to expect consumers to disregard the image of the card when purchasing said card,” the complaint states.
Topps did not respond to a voicemail seeking comment.
Lesko seeks certification of a nationwide and a Missouri class: excluded from both classes are Topps, its subsidiaries and affiliates, Topps employee family members and government entities.
“Some companies will create error cards just to inflate the value,” Wise said in the interview.
“We don’t know what happened here, but we do know that the website did reflect the John Harrison card when my client bought it.”
Lesko seeks damages not to exceed $4,999,999, and attorney’s fees.
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