Case 3:19-cv-00201-L Document 13 Filed 04/08/19 Page 1 of 17 PageID 162

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

KEVIN B. BRASHEAR AND CIVIL ACTION 3:19-cv-00201-L

CHRISTOPHER S. KITCHEN,
individually and on behalf of JUDGE SAM A. LINDSAY
similarly situated individuals

VERSUS

PANINI AMERICA, INC. JURY DEMANDED

FIRST AMENDED COMPLAINT - CLASS ACTION

NOW INTO COURT, through undersigned counsel, come plaintiffs, KEVIN B.

BRASHEAR and CHRISTOPHER S. KITCHEN, individually and on behalf of similarly

situated individuals (hereinafter plaintiffs and/or “class representatives”), who file this First

Amended Complaint – Class Action individually and as representative of all others similarly

situated, and respectfully allege as follows:

I.

PARTIES

1.

Class Representative is KEVIN B. BRASHEAR, an individual of the full age of majority,

domiciled in Dallas County, State of Texas.

2.

Class Representative is CHRISTOPHER S. KITCHEN, an individual of the full age of

majority, domiciled in Marion County, State of Florida.

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3.

Made defendant herein is PANINI AMERICA, INC., (hereinafter “Panini”) a Texas

corporation with its principal place of business in Irving, Texas and doing business within the State

of Texas and the jurisdiction of this Honorable Court.

II.

JURISDICTION

4.

This Honorable Court is vested with jurisdiction by virtue of 28 U.S.C. §1332(d). This

putative class action is brought by the named plaintiffs herein on behalf of all others similarly

situated, each of whom are domiciled within the multiple states. Panini is domiciled in Texas.

Putative Class Representative Kitchen is domiciled in Florida. Further, the amount in controversy

is in excess of $5,000,000 and there is minimal diversity with over 100 putative class members,

thus CAFA jurisdiction exists.

A recent redemption request in January 2019 was request number 1,141,367. Putative Class

Plaintiffs allege that the redemption requests are numbered sequentially, and thus there are over 1

million redemptions. Although individuals often have more than one outstanding redemption, the

putative class far outnumbers 100 persons.

The autographed cards that are being unlawfully withheld from the consumer class can be

worth up to over $1000 per card. In light of the purported value of the cards being unlawfully

withheld from customers and in light of the amount of unfulfilled redemptions, the amount in

controversy is over $5,000,000.

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III.

VENUE

5.

Plaintiff alleges that the cause of action forming the basis of this claim occurred within the

Northern District of Texas because the defendant’s principle place if business is in Irving, Texas.

Thus, venue in this Honorable Court is proper.

IV.

FACTS

6.

Panini is the largest manufacturer in the world of sports collectibles, trading cards and

certified memorabilia with licenses with all major sports, such as the NFL, NBA, baseball and

others.

7.

Panini manufactures individual collectible cards featuring a sports personality which are

sealed in packs (so that the consumer does not know what individual cards it may receive) that are

then sold in boxes. These boxes contain either one or multiple packs of sealed cards, depending

on the particular product. Within the packs, Panini randomly places one or more “redemption

cards” instead of an actual card featuring a sports personality. These redemption cards are simply

a white piece of cardboard with a code that has to be scratched off and entered on Panini’s website

in order to receive the actual card featuring the sports personality, which is a card signed by the

sports personality identified on the redemption card. (See photo of a redemption card from a 2016

Panini product, attached hereto as Exhibit “A”). As noted on its website, redemption cards are

placed in packs instead of the actual card because Panini has not had the card autographed by the

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player by the time the product is packaged. Interestingly, while Panini states that it “reluctantly

uses redemptions” and Panini “makes every effort to exhaust all possibilities before designation a

redemption card”, redemption cards are actually very common. (See Panini webpage, located at

www.paniniamerica.net/faq.cfm, attached hereto as Exhibit “B”).

8.

The process of redeeming is done through a “reservation process” on Panini’s website. As

per its website, with regard to these redemption cards, Panini guarantees that it “will send a

comparable card in its place if the specified card is not available to ship within 4 months or 8

months depending on what timeframe is selected during the reservation process.” (See Exhibit

“B”).

9.

The “reservation process” Panini refers to is simply entering the redemption card code

online and selecting delivery within 4 or 8 months from a dropdown menu with 4 months being

the default.

10.

With regard to the “reservation process” Panini has a well-established pattern and practice

of failing to adhere to its delivery schedule and failing to send the actual cards within the

redeemable timeframe.

11.

In fact, Panini’s failure to honor its redemption process has been reported to the Better

Business Bureau (hereinafter “BBB”) on multiple occasions and some 185 complaints have been

filed. BBB has given Panini an F rating on its scorecard.

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12.

It is nearly impossible to contact Panini through any means, including telephone, emails,

posts, etc. This has also been noted on BBB’s website, which reads:

“On November 22, 2017, BBB notified Panini America, Inc. that BBB has
identified concerning patterns in consumer complaints alleging Panini America,
Inc. fails to honor the promised fulfillment and delivery of products after receiving
redemption cards from its customers. Consumers also allege Panini America, Inc.
fails to communicate redemption order status, and fails to respond to emails and
telephone calls.

BBB requested Panini America, Inc.’s voluntary cooperation in eliminating the

identified patterns in consumer complaints.

As of December 27, 2017, Panini America, Inc. has failed to respond.”

(See BBB webpage located at www.bbb.org/dallas/business-reviews/baseball-cards-and-sports-

memorabilia/panini-america-in-irving-tx-90338985/Alerts-and-Actions, a copy of which is
attached hereto as Exhibit “C”).

13.

Further, Panini also places an expiration date on its redemption cards that is generally two

years redemption. Notice of the expiration date is defective as it is not reasonably placed or written

to alert reasonable consumers. The warning of expiration is in extremely small font and located

on the back of the box of cards which may or may not contain one of the redemption cards at issue.

14.

Despite the presence of an inadequate notice or warning of expiration, the business

practices of Panini render such notice or warning irrelevant. Despite the expiration, Panini

continues to market, distribute and sell boxes or packets of cards that contain redemption cards

that are already beyond the two-year redemption period. A verdict has already been rendered

against another card manufacturer, Upper Deck, for this same exact practice of selling already

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expired cards. (See Beckett webpage, located at https://www.beckett.com/news/upper-deck-loses-

court-case-over-redemption-cards/a copy of which is attached hereto as Exhibit “D”).

15.

The failure to timely redeem redemption cards and the practice of marketing, distributing

and selling redemption cards which have already expired is a worldwide problem. The delay or

failure to redeem causes damage to the putative class because the redeemable cards are more often

than not of players whose cards are in high demand at the time of receipt of the redemption card .

A delay can cause the value of said actual card to diminish and, of course, failure to ever supply

the actual card causes additional damage. The putative class is damaged because the putative class

is enticed to purchase Panini cards with the hope of obtaining a redemption card, the putative class

obtains the redemption card which theoretically gives the class ownership of a valuable card, yet

that valuable card is never provided to the putative class by Panini.

16.

One significant example of the violations committed by Panini that are unconscionable and

known to undersigned counsel is that a current starting quarterback in the NFL, Cody Kessler, has

numerous autographed cards, including rookie cards, that remain unredeemed as of 2 years since

he was a rookie. In addition to Panini’s failure to redeem these cards, it has also failed to send any

“comparable card” in its place as guaranteed on its website, with the belief that Cody Kessler has

failed to sign any of these cards for Panini for some reason that is unknown to and certainly not

the consumers fault in any way, despite investing money in boxes that contained these redemption

cards.

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17.

The number of consumers affected by these actions is suspected to be in the thousands, if

not more.

V.

NAMED PLAINTIFF’S FACTUAL ALLEGATIONS

18.

Putative Class Representative Brashear purchased and collected cards manufactured by

Panini for numerous years but stopped purchasing Panini cards when he realized he would never

receive the redemption at dispute, as he understood this problem to me a universal issue among

collectors.

19.

Putative Class Representative Brashear has an unexpired card still outstanding with Panini

that was attempted to be redeemed two years ago.

20.

Putative Class Representative Brashear purchased an opened a box of football trading cards

at a Panini authorized dealer in Texas. Brashear obtained a redemption card for an Odell Beckham

autographed card from one of the packs inside, and he entered the code from the redemption on

Panini’s website on February 27, 2016, shortly after obtaining it. This redemption remains

unfulfilled well beyond Panini’s misrepresentation and guarantee that it would do prior the four-

month timeframe selected by Mr. Brashear for delivery. (See Exhibit B). Panini has also failed

to deliver a “comparable” card to Mr. Brashear, yet another misrepresentation and guarantee made

by Panini on its own website.

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21.

After attempting to reach Panini on numerous occasions by phone and email, Putative Class

Representative Brashear eventually realized his actions were fruitless and assumed that he would

never receive his card, which to this date he has not.

22.

Putative Class Representative Kitchen has purchased and collected cards manufactured by

Panini for numerous years, but now realizes the problem with the Panini redemption program is a

universal issue among collectors.

23.

Putative Class Representative Kitchen has obtained multiple unexpired redemption cards

that have remained unfulfilled, including redemptions for autographed cards of Andrew

Benintendi and Orlando Arcia that he obtained from packs of baseball cards purchased from a

Panini authorized dealer, as well as expired redemption cards that have not been honored by Panini.

Kitchen submitted the codes from the referenced unexpired redemptions on Panini’s website on

January 7 and 28, 2018, respectively, shortly after obtaining them, and they remain unfulfilled well

beyond Panini’s misrepresentation and guarantee that it would do prior to the four-month

timeframe selected by Mr. Kitchen for delivery. Panini has also failed to deliver a “comparable”

card to Mr. Kitchen, yet another misrepresentation and guarantee made by Panini on its own

website.

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24.

After attempting to reach Panini on numerous occasions by phone and email, Putative Class

Representative Kitchen was finally contacted by a Panini representative who expressed concerns

regarding the redemption program but promised to provide Kitchen with substitute cards for his

outstanding redemptions. To this date, Mr. Kitchen has still not received these “substitute cards”.

25.

As a result, both class representatives, Mr. Brashear and Mr. Kitchen, have suffered

damages in the form of both economic and mental anguish, as well as others they are entitled to

under the Deceptive Trade Practices Act and Texas law, pursuant to their claims. They paid for a

card that they never received anything of value for from Panini. Further, at the time they obtained

the specific redemptions mentioned herein, the actual cards were more valuable, but this amount

has declined in significantly beyond the four-months in which they should have received their

cards pursuant to the guarantees made by Panini. This assumes that they will ever receive an

actual card that they paid for, which may never happen, as this is a global issue among many buyers

of Panini’s products, as established by the numerous posts made throughout the Internet and

specific complaints we have received just since filing this lawsuit.

VI.

CLASS ACTION ALLEGATIONS

26.

Plaintiffs bring this class action pursuant to Federal Rule of Civil Procedure 23(b)(3) on

behalf of thousands of other consumers who are similarly situated to Plaintiff. The class is defined

as follows:

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CLASS DEFINITION

All persons who have initiated the redemption process for an actual card on
Panini’s website and who did not receive a card within the selected timeframe
(4 or 8 months) and/or persons who initiated the redemption process for an
actual card and the redemption was rejected as expired.

27.
The class is so numerous and widespread that joinder of all issues of plaintiffs is

impracticable. Consumers affected by Panini’s actions are anticipated to be in the millions.

Additionally, no attorney would have the financial resources to litigate this case against opposition

from the Defendants when the potential for recovery is so small for each class member. Therefore,

joinder of all similarly situated plaintiffs is appropriate.

COUNT I

(Texas Deceptive Trade Practices Act “DTPA”)

Plaintiffs reincorporate and reallege Paragraphs 1 through 27 as if more fully set forth

herein.

28.

Plaintiffs brings claims against the Defendants under Texas Deceptive Trade Practices Act,

V.T.C.A., Bus. & C. § 17.41, et seq. Panini was served with formal notice on August 15, 2018.

The State of Texas Attorney General was served with formal notice on August 14, 2018.

29.

Defendant misrepresents the timeframe in which consumers would obtain cards and fails

to honor expired cards that it sells well beyond the “redemption period.”

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30.

Defendant employed, in connection with the sale and advertisement of its product, to all

consumers, deception, fraud, false pretense, false promise, misrepresentation, and unfair practices.

31.

As a direct result of the deceptions, frauds, false pretenses, misrepresentations, unfair

practices, concealments, suppressions, and omissions of Defendants, Putative Class Members have

suffered an ascertainable loss of money, namely the value of the card that they have never obtained

from Panini.

32.

Moreover, Defendant’s actions and inactions are intentional and outrageous, without any

justification or excuse, and warrant the imposition of punitive damages and mental anguish under

the DTPA.

33.

In the event the Putative Class is the prevailing party, the Putative Class also seeks a

reasonable attorney’s fee and costs as provided under the DTPA.

COUNT II

34.

(Civil Fraud)

Plaintiffs reincorporate and reallege Paragraphs 1 through 33 as if more fully set forth

herein.

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35.

Putative Class Representatives brings civil fraud claims against the Defendant as

material misrepresentations were made; the representations were false; Defendant knew the

representations were false when made; representations were made that it should be acted upon

by Putative Class Representatives and others similarly situated; Putative Class Representatives

acted in reliance on false statements and suffered injury.

36.

Panini has made a material misrepresentation that it would provide Plaintiffs with an actual

card of value rather than a worthless cardboard redemption card with a scratch off code. This

misrepresentation was false no card of value was ever delivered to Plaintiffs.

37.

This misrepresentation by Panini was made without knowledge of the truth, since the facts

clearly establish that Panini does not know when, if ever, the card of value, or any card for that

matter will rightfully be delivered to Plaintiffs.

38.

The misrepresentation was intended to be acted upon by Panini as it was expected that

Panini would send Plaintiffs their expected card of value.

39.

The misrepresentation made by Panini was relied upon by Plaintiffs for Panini to send them

a card of value when they purchased and obtained a redemption card instead. By failing to do so

Panini caused injury to Plaintiffs since they clearly lost money by paying for and not receiving

anything of value from Panini despite its guarantee to the contrary.

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COUNT III

40.

(Tort)

Plaintiff reincorporates and reallege Paragraphs 1 through 39 as if more fully set forth

herein.

41.

Putative Class Representative bring claims against the Defendant for tort damages

arising from Defendant’s actions as Putative Class Representative was damaged from the

tortious actions of Defendant.

42.

Plaintiffs allegations support a claim for negligence and false advertising pursuant to Texas

law, and they have suffered damages as a result of these claims.

43.

The common law doctrine of negligence is comprised of three elements: (1) duty; (2)

breach of that duty; and (3) damages proximately resulting from that breach.

44.

Panini has a duty to fill redemption cards in the manner as stated on its own website, this

duty was breached when it failed to deliver the actual card or a “comparable” one as guaranteed,

and this failure was the direct cause for Plaintiffs’ economic, mental anguish as well as all other

damages allowed for by law.

45.

Plaintiffs also have claims under the general tort cause of action for false advertising.

Panini clearly guarantees and advertises on its website that if a buyer receives a redemption card
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and enters the code on its site, Panini will deliver the actual card or a “comparable” one within

four or eight months. (See Exhibit B of Complaint – Classics Action). As established by the

allegations made herein, Panini has failed to honor this guarantee.

COUNT IV

(Conspiracy to Defraud)

46.

Putative Class Representatives reincorporate and reallege Paragraphs 1 through 45 as if

more fully set forth herein.

47.

Putative Class Representatives bring claims against the Defendant for Conspiracy to

Defraud.

48.

Defendants agreed to commit a wrong on the Putative Class Representatives by falsely

advertising the availability of a timeframe to deliver a product that Defendant was unable to

fulfill, and by selling expired redemption cards.

49.

Putative Class Representatives were injured by the conspiracy to defraud engaged in by

the Defendant.
50.

A civil conspiracy is composed of two or more persons combining to accomplish an

unlawful purpose or to accomplish a lawful purpose by unlawful means. Massey v. Armco Steel

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Co., 652 S.W.2d 932, 934 (Tex.1983). The elements of a cause of action for civil conspiracy in

Texas are (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds

on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the

proximate result. Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.1996); Tri v. J.T.T., 162 S.W.3d

552, 556 (Tex.2005).

51.

In this lawsuit, Plaintiffs allegations herein, taken as true, have satisfied the elements of

this claim based on the fact that Panini has unlawfully conspired with third-party “authorized”

Panini dealers and distributors to sell and distribute its products containing the redemption cards

that serve as the primary object for Plaintiffs’ claims. It is unnecessary for Plaintiffs to make

claims against any of these third-parties to sustain a claim of conspiracy against Panini.

COUNT V

(unjust enrichment)

52.

Putative Class Representatives reincorporate and reallege Paragraphs 1 through 51 as

if more fully set forth herein.

53.

Putative Class Representatives bring claims against the Defendant for unjust enrichment

as Defendant was unjustly enriched by selling a product that was advertised to be delivered but

never done and selling expired redemption cards while keeping the actual product.

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54.

In Texas, courts treat unjust enrichment claims as a claim for “money had and received”,

which can also be an independent cause of action under Texas law. See Norhill Energy LLC v.

McDaniel, 517 S.W.3d 910, 917–18 (Tex. App. 2017), review denied (Dec. 8, 2017).

55.

In the instant matter, Plaintiffs allege the independent cause of action of unjust enrichment,

but also in connection with the general torts associated with Panini’s actions and inactions. By not

providing Plaintiffs with cards of value for their worthless redemption cards with simply a code to

exchange on Panini’s website, as well as not fulfilling these worthless redemption card that were

paid for by Plaintiffs but that have expired, Panini continues to get richer by keeping “money” that

belongs to Plaintiffs but has not been returned.

56.

WHEREFORE, Plaintiff and all similarly situated individuals who do not opt out of

this action demand:

a) an order, entered as soon as practicable, certifying this case as a

class action under Rule 23.

b) an order directing that appropriate notice to class members be

delivered;

c) compensatory damages for Plaintiff and the other Class Members

in an amount which is fair and reasonable to compensate them for their

damages;
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d) all damages in an amount which is fair and reasonable;

e) punitive damages;

f) reasonable attorney’s fees and costs; and

g) such other relief as the Court deems just and proper.

57.

Plaintiff and the proposed class members demand a trial by jury.

Respectfully Submitted,
MARTZELL, BICKFORD & CENTOLA

/s/Scott R. Bickford
_________________________________
SCOTT R. BICKFORD, T. A. (TX 02295200)
usdcedtx@mbfirm.com; srb@mbfirm.com
338 Lafayette Street
New Orleans, LA 70130
Tel: (504) 581-9065
Fax: (504) 581-7365
ATTORNEY FOR PUTATIVE CLASS
PLAINTIFFS

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