How do I initiate a class action lawsuit? Fraudulent PSA cards (Longish)

Factual Questions
1

Last year I bought a PSA graded baseball card from a seller on Ebay with the name “Wiwag.” It was a rookie card of my favorite player and was graded a PSA 10. I bought this as an investment and paid $100.00 for it. Just to give a little background, if you don’t know what PSA is, they are a grading company of mostly sports cards. You send them cards and they verify their authenticity, grade them on a 1 to 10 scale and encapsulate them in a “secure” plastic holder. Many people use PSA and other grading companies for their sports cards, and these cards generally sell for more money than a non-graded card.

So I’ve tucked away this card and kind of forgotten about it and I receive this email yesterday. Here is the text of the email I received.

Dear Purchaser:

        When It Was A Game, Inc. (? WIWAG?) has pled guilty to a

federal mail fraud charge involving inserting inferior sports cards
into PSA-sealed holders (?slabs?) for higher rated cards. Your
purchase of a card or cards from WIWAG either directly, or indirectly
through innocent parties, may or may not involve one of these replaced
cards.

        WIWAG has agreed that PSA will determine the true grade of

your card or cards if you so desire. If your card or cards are
determined to be fraudulently inserted cards, WIWAG will replace your
card with a card that has been properly graded by PSA in exchange for
the card you actually purchased. If no replacement card graded by PSA
is available, WIWAG will either refund your purchase price (in
exchange for the card), or, if you elect to retain the card, will pay
you the difference in market value between your actual card and the
rating represented on the slab at the time of purchase.

        If you would like to have your cards assessed, please

contact San Diego FBI Victim/ Witness Coordinator Liz Bollig at
858-499-7952, or write her at 9797 Aero Drive , San Diego , California
, 92123 . In order to avail yourself of this opportunity, please make
contact with the Victim/ Witness Coordinator within 45 days of the
receipt of this communication.
So this guy has a pretty good scam going right? He has sent some mint cards to PSA and receives a PSA 9 or 10 rating, figures out how to bust into the card holder and replaces it with a less valuable/inferior card than is actually graded, re-seals the holder and sells it for high prices. Then he can send that same card that got a high rating back to PSA, get another high grade and repeat the process over and over. Depending on the card in question, the difference between a PSA 9 rating and a PSA 10 rating could be hundreds, even thousands of dollars.

So Wiwag has been doing this for some time and has become somewhat of an expert at breaking into these holders and switching the cards. He had a very high feedback rating and barely any negative feedback on Ebay so he was clearly fooling many PSA collectors for years. I took out my card yesterday and took out a magnifying glass and really inspected this card and holder thoroughly. I am now convinced that the card I have is a swapped card as there are some minor defects that are not clearly visible to the naked eye but most likely would not have received the PSA 10 rating. I cannot find any noticeable tampering with the holder however, which is the part that concerns me most.

So my situation now is, I can send this card back to PSA and if it is not authentic, Wiwag will replace the card with an authentic one or I can get my purchase price back if one is not available. That is good but, over the last couple of years I have sent many of my own cards to PSA to have them graded. PSA grading is not cheap and I probably have spent upwards of $500 on my collection. PSA claims on their site that their card holders are “tamper evident.” This is clearly not the case as Wiwag has proven many times over, and who knows how many others may have done or are doing the same thing? The point is that once this becomes more publicized people will be leery of buying PSA cards because they may never be able to tell if their holders have actually been compromised. Now I am left to feel that I have wasted a lot of money on PSA grading as I was led to believe that the holders were tamper evident when in fact, they were not and probably will not be able to get the true value of any of my cards should I decide to sell them in the future.

I’m wondering who else may feel the same way and am wondering if this may be grounds for a class action lawsuit against PSA. They must have known for some time that this was a potential problem but continued to accept and grade cards and placing them in inferior holders that were able to be compromised without them obviously being tampered with.

Anyone know any good lawyers and how to initiate a class action lawsuit? Anyone else on the board have this happen to them?

2

Your chances of getting a meaningful response increase if you let us know what state you are in.

3

Sorry, I’m in Massachusetts.

4

Generally, you don’t need to sign up other plaintiffs to initiate a class action suit – you just file your suit, making sure that the allegations in your complaint 1) are true, to the best of your knowledge, and 2) comport with the jurisdiction’s requirements for a class action. In most jurisdictions, the putative class must, at a minimum, be numerous, have legal and/or factual issues in common (and perhaps those common issues must predominate over diversities througout the class), your claim must be typical of the class members’ claims, you must be an adequate representative, and so on. If your complaint meets these requirements, then that’s all you need to do to initiate the suit. You don’t have to sign up other plaintiffs, but in most cases you will have to send notice to other class members and they will have an opportunity to “opt out” of the class.

http://www.lawlib.state.ma.us/mrcp23.html

Once you file the complaint, it’s up to the judge to decide if your case meets the requirements of a class action. If so he “certifies” the class and the result of the case will bind absent class members. If not, there is no class, but you can usually proceed with the suit on your own.

What you need to do is to consult an attorney. I know something about class actions in the federal court system, but I am not licensed in Massachusetts, and I have very little understanding of the facts of this case. I also have no idea whatsoever if the injury you claim to have suffered would be cognizable under Massachusetts law or the law of any other jurisdiction. I am not competent to advise you in this matter. I am not your lawyer. You are not my client.

–Cliffy, Esq.

5

IANAL etc.

In a nutshell, you contact an attorney and let him or her know the basis of your proposed suit. The attorney can then research the issue and determine among other things the potential number of litigants. Your attorney files suit on behalf of you and other similarly situated plaintiffs in a court of appropriate jurisdiction and files a motion for the judge to “certify” the class as described in the suit. The judge will make the determination as to whether there is sufficient cause to lump all the claims for all potential defendants together into one big suit.

I’m leaving out a lot of the nuts and bolts technical behind the scenes stuff. If you’re interested I’m sure one of our attorney friends will be along in a moment and go into excruciating detail.

6

Cliffy:

At the risk of revealing how little attention I paid in school, is there a materiality requirement – does the named plaintiff have to show that its impractical for each prospective plaintiff to litigate the issue on his own?

  • Rick
7

I just wanted to point out that it’s possible your card genuinely was certified as PSA 10, and that the fraudulent cards actually did show evidence of tampering.

Also, (bear in mind I’ve never actually seen a PSA-sealed card), it’s possible that Wiwag actually built their own imitation PSA card cases, rather then broke into existing genuine ones.

My point is that it’s possible that PSA has done nothing wrong here, and the best first step is to actually have the card re-evaluated before any other steps are taken.

8

You would really need to be familiar with the PSA holder but I believe if you saw them you would agree that it would be quite a challenge to duplicate the holder so perfectly if not impossible. Also, I should note that PSA assigns a number to every card they grade so you can log into their site and type the number in to certify that is is a PSA graded card.

I agree that it is possible that the card I purchased from Wiwag could be legitimate and I will go through the procedure to have it evaluated. I have been browsing some different sport card related message boards including a message board on PSA’s site. It seems that quite a few people are claiming that they have opened PSA’s holders very easily without noticeable damage and in one case someone claimed to have opened one with nothing more than the edge of his fingernail.

I guess I was not concentrating on whether the card I bought from Wiwag was legitimate or not as much as the fact that PSA is selling a product that they say is tamper evident but is not. Did they know this at the time I had my cards graded? I don’t know, I certainly could not prove that but, they do know today that they are not tamper evident and continue to do buisness using the same card holders. Does this make responsible for anything? False advertising if nothing else?

Thank you everyone for your comments so far. I’d like to hear other thoughts on this.

9

Here are a couple of links to some message boards I found discussing this subject.

google groups

PSA Group

10

There’s nothing directly on that point but it’s partly covered by the numerosity and commonality requirements. In the federal system, the class must be so numerous “as to make joinder impractical.” (That’s from memory, might be a little off.) Also in the federal system (and from my half-assed perusal of the Massachusetts rule, this appears to be different in that state), a class action for an injunction doesn’t particularly require what you’re calling materiality, but a class action for money damages requires both that common issues predominate (instead of merely existing) and that a class action is the “superior method of adjudication,” which in practice is probably about the same thing. (Upon reflection, it becomes obvious why it’s easier to certify an injunction-seeking class; even a single plaintiff could get an injunction that says “Quit promoting only white males” or “Quit dumping biowaste into the resevoir.” The defendant’s due process interest in avoiding a class is very weak. Contrast this with the payout on a one-plaintiff action vs. a 1000 plaintiff class action for, say, a tort defendant.)

Again, to be clear, the above response deals with class actions in federal court. It looks like Massachusetts is different and I don’t purport to address any other jurisdiction.

–Cliffy