Quote:
Originally Posted by Kenny Cole
I wonder if a fraud/deceit claim could possibly be asserted. At least here, the elements are:
1. That [Defendant] made a material representation (that the card met the requirements necessary to receive the assigned grade);
2. That it was false (that the grade is inaccurate due to alterations);
3. That [Defendant] made it when [he/she] knew it was false, or made it as a positive assertion recklessly, without any knowledge of its truth (that during the grading process, the grader should have or did have information indicating that the assigned grade was incorrect);
4. That [Defendant] made it with the intention that it should be acted upon by [Plaintiff] (by far the most problematic element IMO, although intent can sometimes be inferred from the circumstances surrounding the transaction);
5. That [Plaintiff] acted in reliance upon it (they purchased the card for the going price in reliance upon the assigned grade); and
6. That [Plaintiff] thereby suffered injury (because the condition of the card was not that portrayed by the assigned grade, the purchaser lost money).
That might possibly work against the grader, assuming you can satisfy the discovery rule for statute of limitations purposes. It would admittedly be difficult. At least here, the discovery rule doesn't generally apply to contract actions so you would likely be out of luck on a contract claim after the statute ran.
A fraud/deceit claim is probably not great against a buyer who then resells it, since the knowing/reckless element will almost never be there. I would guess that's more a breach of contract/warranty issue, with that seller then having a potential indemnity claim against whoever he/she/it got the card from back up the line, subject to any applicable SOL. Yes, what a mess.
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Interesting argument. I would think point 3 would be the tough one to establish, all the more so because since this was the first card PSA purportedly slabbed, it would probably be easier for them to argue that at that stage of card grading graders reasonably did not have the expertise to catch things that now-a-day they do. Adding to that problem is that for actions in fraud, in certain jurisdictions the legal standard is clear and convincing evidence, a higher standard than preponderance of the evidence (at least to the extent a jury would care about the distinction).
In the matter at hand, it has been alleged the person who actually graded the card knew it was trimmed and expressed such. Whether that is true and if it is can be revealed during discovery, that is another question. If though that can be established, then the action for fraud would seem to be viable -- except though for the SOL problem, as the allegations the card was trimmed and PSA always knew that have been out there for a long time.