Alteration vs. Conservation Defined

[Kenny Cole]

Originally Posted by benjulmag

I agree with your point about exercise of reasonable diligence, unless I could fashion an argument that it was only recently that I was reasonably put on notice about the likelihood of alteration. I would think the action would be breach of contract, though there could be a lack of privity problem if I was not the person who submitted the card for grading. If I bought it from an auction house, they probably had a disclaimer that they are not responsible for the accuracy of graded cards. So they would be protected. However, they probably would have a duty to reveal the consignor, and that would be the person I would have to go after. That person in turn would assign me his right to sue the grading company (assuming he was the person who had the card graded). If he in turn bought it from someone else and it was that other person who had the card graded, then he would have to go after that person. This potentially could go on down the chain until I reached the person who had the card graded.

What a mess.

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.