do not forward OFF this group that Xlist
reason is for this email which I received today from guess...
Saw your weblink and noticed this statement. "Another name to watch for is Donald Frangipani who was convicted of forging COA's...." You are just another misinformed asshole who is spreading false rumors. Get your facts right before you get sued. Frangipani has never been charged, let alone convicted of anything to do with the forgery investigations. So this guy knows, I've been round and round for months with the threatened to be sued by a lawyer in NY. He kept harrassing me for his phone number being on my website. I'd of removed it (although he was delusional as the number for for a comic book company).... I'd of removed it immediately had he of spoken to me in a nice manner. But the very first email was nasty, rude, and he didn't sign his name. I did some research found out all about him, and contacted the NY Bar Association. Though they couldn't do anything about his harrassment, they did tell me what I could do. I chose to contact his boss. I forwarded him several of the saved emails and guess what? The number remains and the guy has "let it go". I told his boss that when the guy would ask me nicely and politely to remove it, I'd kindly oblige. That's why it remains...he was a jerk. As for this jerkwad, same goes for him. There are many articles on the net about Mr. Franipani to support what I said. All I did was mention he was named in these articles. Now, I think I'll go ahead, put in the links, post to a few more places to warn people. His email to me is indicative to his ethics and morals. Therefore his name will remain. But please do not give anyone information about the Xlist or other such things outside of this group without asking first. Thanks. I don't need other crap email like that. |
from www.beckett.com the copy of the lawsuit filing.
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO LARS GENTRY; HENRY CAMP; MIKE ) Case No. HYDER; JAMES CONBOY; WILLIAM ) POMMERENING; MICHAEL OSACKY, ) CLASS ACTION COMPLAINT on behalf of themselves and all others ) FOR NEGLIGENCE; VIOLATIONS OF THE similarly situated, ) BUSINESS AND PROFESSIONS ) CODE; VIOLATIONS OF THE Plaintiffs, ) AUTOGRAPHED SPORTS ) MEMORABILIA STATUTE; AND vs. ) INJUNCTIVE RELIEF ) EBAY, INC., a Delaware Corporation; ) ANGELO MARINO, an Individual dba ) FRONT PAGE ART, INC.; GLORIA ) MARINO, an Individual dba FRONT ) PAGE ART, INC.; GREGORY ) MARINO, an Individual dba FRONT ) PAGE ART, INC.; JOHN MARINO, an ) Individual dba FRONT PAGE ART, ) INC.; KATHLEEN MARINO, an ) Individual dba FRONT PAGE ART, ) INC.; WAYNE D. BRAY, an Individual ) dba W.W. SPORTSCARDS and ) SPORTS AND CELEBRITY ) AUTOGRAPH AUTHENTICATION; ) DONALD FRANGIPANI, an Individual; ) STANLEY FITZGERALD, an Individual ) dba STAN THE MAN MEMORABILIA ) and STAN'S SPORT MEMORABILIA; ) PHIL SCHEINMAN, an Individual dba ) SMOKEY'S SPORTSCARD, INC.; and ) DOES 1 through 100, Inclusive; ) ) Defendants. ) ________________________________) TABLE OF CONTENTS I. NATURE OF THE ACTION 1 II. VENUE 1 III. PARTIES 2 IV. CLASS ACTION ALLEGATIONS 5 V. FACTUAL ALLEGATIONS 6 A. Background: The Autographed Sports Memorabilia Industry 6 B. Operation Bullpen 6 1. The Forgers 7 2. The "Expert" Authenticators 8 3. The Large-Scale Dealers 9 C. eBay's Role 9 1. eBay's Practices are Unlawful and Against Public Policy 10 2. eBay Has Violated, And Continues to Violate, California's Autographed Sports Memorabilia Statute 12 VI. CLAIMS FOR RELIEF 14 COUNT I Negligence 14 COUNT IIViolation Of §§17200, Et Seq. Of The California Business & Professions Code 15 COUNT IIIViolations Of §1739.7 Of The California Civil Code 17 COUNT IVInjunctive Relief 18 Plaintiffs, by their attorneys, allege upon information and belief the claims set forth herein, based upon documentary evidence, the investigation of their attorneys, the investigation of and complaints filed by the United States Attorney General, website information produced by the Defendants, interviews of potential witnesses, and other persons knowledgeable about these events, as follows: I. NATURE OF THE ACTION 1. This is a class action brought on behalf of purchasers of forged autographed sports memorabilia purchased through auctions on eBay, from September 1, 1995 through April 12, 2000 (the "Class Period"). 2. During the Class Period, the Individual Defendants were engaged in a nationwide scheme to create and distribute forged sports memorabilia, such as jerseys, shoes, bats, balls, "cuts" (commonly known in the sports memorabilia industry as autographed pieces of paper), hats, trading cards and photographs, purportedly signed by professional athletes. 3. Most of the forged sports memorabilia was mass-marketed to collectors through eBay, an Internet auction firm. During the Class Period, most autographed sports memorabilia offered for sale on eBay was forged. Yet, despite years of complaints and warnings from collectors, dealers, authenticators and enforcement agencies, eBay continued to auction forged sports memorabilia. eBay violated California law by either failing to provide a certificate of authenticity expressly warranting the items or failing to insure that such a certificate was being provided by any other party to the auction. 4. As a consequence of the defendants' conduct, plaintiffs and members of the class have been damaged thereby. II. VENUE 5. Venue is proper because defendants transact business in this district and because the impacts of defendants' unlawful acts in producing and distributing forged sports memorabilia occurred in the forum. Significant transactions relative to the underlying forgery and sales scheme occurred in California. Most of the Individual Defendants reside in San Diego County, California and created and/or distributed most, if not all, of the forged sports memorabilia offered for sale on eBay's online auction. III. PARTIES 6. Plaintiff Lars Gentry is an individual who resides in Illinois. Mr. Gentry purchased a forged Roberto Clemente cut, a forged Roger Hornsby cut, a forged Greg Maddux baseball, a forged Eddie Murray baseball, a forged Wade Boggs baseball and a forged 3000 hit ball through eBay auctions. As a consequence, Mr. Camp was damaged thereby. 7. Plaintiff Henry Camp is an individual who resides in Tennessee. During the Class Period, Mr. Camp purchased a forged Roger Clemens baseball, a forged Mike Schmidt baseball and a Reggie Jackson baseball through eBay auctions. As a consequence, Mr. Camp was damaged thereby. 8. Plaintiff Mike Hyder is an individual who resides in Pennsylvania. During the Class Period, Mr. Hyder purchased a forged Pee Wee Reese baseball through an eBay auction. As a consequence, Mr. Hyder was damaged thereby. 9. Plaintiff James Conboy is an individual who resides in New York. During the Class Period, Mr. Conboy purchased a forged Ted Williams baseball bat through an eBay auction. As a consequence, Mr. Hyder was damaged thereby. 10. Plaintiff William Pommerening is an individual who resides in California. During the Class Period, Mr. Pommerening purchased a forged Ken Griffey, Jr. baseball through an eBay auction. As a consequence, Mr. Pommerening was damaged thereby. 11. Plaintiff Michael Osacky is an individual who resides in Illinois. During the Class Period, Mr. Osacky purchased a forged Joe Dimaggio cut and a forged Ty Cobb cut through an eBay auction. As a consequence, Mr. Osacky was damaged thereby. 12. Defendant eBay, Inc. is a Delaware public company with its principal place of business at 2005 Hamilton Avenue, Suite 350, San Jose, California, 95125. Since September 1995, eBay has been an internet auctioneer. eBay is the largest online auctioneer in the world. 13. Defendant Angelo Marino, doing business as "Front Page Art, Inc.", is an individual who resides in San Diego, California. He has been indicted by the U.S. Attorney General for his involvement in the distribution of forged sports memorabilia. 14. Defendant Gloria Marino, doing business as "Front Page Art, Inc.", is an individual who resides in San Diego, California. Defendant Gloria Marino is the wife of Angelo Marino. She has been indicted by the U.S. Attorney General for her involvement in the distribution of forged sports memorabilia. 15. Defendant Gregory Marino, doing business as "Front Page Art, Inc.", is an individual who resides in San Diego, California. Defendant Gregory Marino is the son of Angelo and Gloria Marino. He has been indicted by the U.S. Attorney General for his involvement in the distribution of forged sports memorabilia. 16. Defendant John Marino, doing business as "Front Page Art, Inc.", is an individual who resides in San Diego, California. Defendant John Marino is the son of Angelo and Gloria Marino. He has been indicted by the U.S. Attorney General for his involvement in the distribution of forged sports memorabilia. 17. Defendant Kathleen Marino, doing business as "Front Page Art, Inc.", is an individual who resides in San Diego, California. Defendant Kathleen Marino is the wife of Gregory Marino. She has been indicted by the U.S. Attorney General for her involvement in the distribution of forged sports memorabilia. 18. Defendant Wayne D. Bray, doing business as "W.W. Sportscards" and "Sports and Celebrity Autograph Authentication", is an individual who resides in San Diego, California. In May 1999, Mr. Bray pleaded guilty to charges that he was one of the main distributors and authenticators of forged sports memorabilia produced by the Marino Defendants. At that time, Mr. Bray also agreed to cooperate with a federal investigation which resulted in overwhelming evidence of the fraudulent scheme alleged herein. 19. Defendant Donald Frangipani is an individual who resides in Brooklyn, New York. Mr. Frangipani, has been identified as a co-conspirator in the fraudulent scheme alleged herein. 20. Defendant Stanley Fitzgerald, doing business as "Stan The Man Memorabilia" and "Stan's Sports Memorabilia", is an individual who resides in Caldwell, New Jersey. On April 12, 2000, Mr. Fitzgerald was indicted by the U.S. Attorney General for his involvement in the sale of forged sports memorabilia produced by the Marino Defendants. 21. Defendant Phil Scheinman, doing business as "Smokey's Sportscard, Inc." is an individual who resides in Henderson, Nevada. In October 1999, as part of a federal investigation of the forged sports memorabilia produced by the Marino Defendants, nearly all of Mr. Scheinman's sports memorabilia was seized as forged sports memorabilia. 22. Plaintiffs allege on information and belief that at all relevant times DOE DEFENDANTS 1 through 100, inclusive, were the agents, employees, accountants, attorneys, appraisers, brokers, representatives, partners, and related or affiliated entities or providers of services to or on behalf of their co-defendants, and in doing the things hereinafter mentioned, were acting in the course and scope of their agency, employment, or retention with the permission, consent, authority and ratification of their co-defendants. Plaintiffs are presently unaware of the true names and identities of those defendants sued herein as DOE DEFENDANTS 1 through 100. Any reference made to such defendant by specific name or otherwise, individually or plurally, is also a reference to the actions or inactions of DOE DEFENDANTS 1 through 100, inclusive. /// IV. CLASS ACTION ALLEGATIONS 23. Plaintiffs bring this action pursuant to Section 382 of the Code of Civil Procedure as a class action on behalf of all eBay purchasers of forged sports memorabilia (the "Class") from September 1, 1995 through April 12, 2000 (the "Class Period"). 24. Members of the Class are numerous and joinder is impracticable. 25. Common issues of fact and law predominate over individual issues, including: - whether eBay is a "dealer" under § 1739.7 of the California Civil Code and is required to provide a certificate of authenticity to purchasers of autographed sports memorabilia; - whether the Individual Defendants combined, agreed and conspired among themselves to produce, distribute and sell forged sports memorabilia; - the existence and duration of the Individual Defendants' production, distribution and sale of forged sports memorabilia; - whether the Individual Defendants and each of them were members of, or participants in the contract, combination and/or conspiracy alleged herein; - whether the Individual Defendants took steps to actively conceal their conspiracy from Plaintiffs and members of the Class; and - whether the defendants caused injury to the Plaintiffs and members of the Class and, if so, the appropriate measure of damages. 26. Plaintiffs interests are typical of, and not antagonistic to, the interests of the members of the Class. 27. Plaintiffs have retained competent counsel experienced with class actions and they intend to vigorously prosecute this action. 28. A class action is superior to all methods for the fair and efficient adjudication of this controversy. The size of the individual damages is small in comparison to the complexity and national scope of the defendants' operations and alleged misconduct. A class action is the only method whereby Plaintiffs and members of the Class can efficiently seek redress and obtain a uniform adjudication of their claims. Plaintiffs do not anticipate difficulties with the management of this action. V. FACTUAL ALLEGATIONS A. Background: The Autographed Sports Memorabilia Industry 29. The sale of sports memorabilia is a $750 million dollar a year industry in the United States. The industry includes the buying, selling, and trading of an almost endless variety of "sports memorabilia", which includes items such as photographs, sports equipment (such as baseballs, footballs, baseball bats and game jerseys), pieces of paper (commonly known as "cuts") and similar items. 30. The price of an item of autographed sports memorabilia depends on a variety of factors. The success and popularity of the athletes generally influence the price. In addition, the memorabilia of deceased athletes ("vintage memorabilia") yields higher prices. In addition, the rarity of the signature and the type of item autographed influences the item's market value. For example, a Babe Ruth or Ty Cobb autographed baseball would be worth thousands of dollars. 31. The autographed sports memorabilia industry is plagued by a large number of false and fraudulent items. Industry experts estimate that at least 50% and upwards of over 90% of all autographed sports memorabilia in the marketplace contain forged signatures. 32. In order to assure buyers that the items they are purchasing are genuine, autographed sports memorabilia is accompanied by a document known as a "Certificate of Authenticity". A Certificate of Authenticity is a document which accompanies an item of sports memorabilia and warrants that the item is genuine. B. Operation Bullpen 33. From at least 1993, the San Diego Field Office of the Federal Bureau of Investigations ("FBI"), in conjunction with the United States Attorney's Office for the Souther District of California, began an investigation in the production, fraudulent authentication, and distribution of counterfeit sports memorabilia known as "Operation Bullpen". 34. The Operation Bullpen investigation uncovered a nationwide criminal racketeering enterprise responsible for the distribution of tens of millions of dollars worth of counterfeit memorabilia. During the investigation, the FBI secured evidence that the most forged sports memorabilia distributed throughout the United States is traceable to a finite number of forgers, namely Defendants Angelo Marino, Gloria Marino, Gregory Marino, John Marino and Kathleen Marino (collectively, the "Marino Defendants"). 35. The Operation Bullpen investigation also uncovered that the Marino Defendants controlled a nationwide sales network of "expert" authenticators and large-scale sports memorabilia dealers who sold most of the forged memorabilia at auction on eBay. 1. The Forgers 36. The Marino Defendants were, and continue to be, engaged in an on-going, wide-ranging and commercially successful scheme to defraud consumers through the sale of forged sports memorabilia. 37. Generally, the Marino Defendants would purchase sporting good items and photographs from retail stores. These items constituted the raw materials of the fraudulent scheme. These items would then be brought to the house of Angelo Marino and Gloria Marino for the addition of forged signatures. 38. The Marino Defendants maintained a "black book" of representations of authentic signatures of professional athletes. The Marino Defendants used the black book as a guide to forge signatures of various athletes. For example, the Marino Defendants forged the vintage signatures of Babe Ruth, Lou Gehrig, Ty Cobb, Micky Mantle and Joe Dimaggio. The Marino Defendants also forged the signatures of current athletes such as Sammy Sosa, Mark McGwire, Tony Gwynn, Michael Jordan and Kobe Bryant. In order to deceive consumers and make an item appear the appropriate age, the Marino Defendants also utilized various techniques, such as the "dipping" of baseballs. 39. Each of the Marino Defendants assisted in the production of forged sports memorabilia in some way. Defendant Angelo Marino had the primary responsibility for organizing the fraud scheme and distribution of the fraudulent items to a nationwide sales network. Defendant Gloria Marino sets prices and handled cash flow. Defendant Gregory Marino was primarily responsible for the falsification of signatures. Defendant John Marino procured the raw materials for the scheme and assisted in the distribution of fraudulent items. Defendant Kathleen Marino prepared the items for forged signatures and took purchase orders from dealers. 2. The "Expert" Authenticators 40. The role of the authenticator was extremely important to the success of the Marino Defendants' fraudulent scheme. Not only did an authenticator's Certificate of Authenticity ("COA") induce a consumer to purchase an item, the COA also allowed co-conspiring dealers to feign, or maintain, ignorance of the fraudulent nature of the item they were selling. That is, on the few occasions when an unsuspecting buyer discovered the fraud, the dealer claimed that he relied on the accuracy of the COA and was unaware of the forged signature contained on the item. 41. In reality, however, the COA's were mass-produced forms and co-conspiring dealers knew that the COA's were fraudulent. 42. Defendant Wayne Bray was employed to mass produce fraudulent COA's and Defendant Donald Frangipani was employed to render his fraudulent "expert" opinion as to numerous signatures. In reality, however, both knew that the Marino Defendants were forging the signatures of professional athletes. 43. During the Class Period, thousands of items of forged sports memorabilia have been sold on eBay accompanied by COA's and "expert" opinions produced by Defendants Wayne Bray and Donald Frangipani. 3. The Large-Scale Dealers 44. The Marino Defendants sold most of their forged sports memorabilia to a number of large-scale dealers, each of whom had knowledge of the fraudulent nature of the items. The largest dealers included Defendants Stanley Fitzgerald and Phil Scheinman. 45. Defendant Stanley Fitzgerald sold the forged sports memorabilia to consumers through his entities known as "Stan's Sports Memorabilia" and "Stan The Man Sports Memorabilia". Most of Defendant Fitzgerald's offers and sales were effected through eBay auctions. 46. Defendant Phil Scheinman sold the forged sports memorabilia to consumers through his entity known as "Smokey's Sportscard, Inc.". Most of Defendant Scheinman's offers and sales were effected through eBay auctions. C. eBay's Role 47. eBay was formed in September 1995 and operated its online auction service under the name of "Auction Web". In September 1997, eBay renamed its auction service "eBay". eBay has issued hundreds of press releases describing itself as an "auction" service and "auctioneer". 48. During the Class Period, eBay auctioneered thousands of items of forged sports memorabilia created by the Marino Defendants. A substantial amount of the items were accompanied by fraudulent COA's and "expert" opinions produced by Defendants Bray and Frangipani. 49. As early as 1996, eBay began to receive an alarming number of consumer complaints that forged sports memorabilia was being auctioned on eBay by Defendants Fitzgerald, Schenman, and others. When eBay failed to revoke the user privileges of Defendants Fitzgerald, Schenman, and others, consumers complained to various government agencies. From as early as 1996, eBay received a number of warnings from government agencies that a substantial amount of forged sports memorabilia was being auctioned on eBay. 50. Around the same time, eBay began to receive consumer complaints and government warnings also about the fraudulent nature of the COA's and "expert" opinions of Defendants Bray, Frangipani, and others. 51. During the Class Period, eBay has received at least hundreds of complaints and warnings from consumers, dealers and government agencies. Yet, eBay ignored the warnings and allowed the forged sports memorabilia scheme to continue for the sole purpose of reaping millions of dollars in profits for eBay. 1. eBay's Practices are Unlawful and Against Public Policy 52. In September 1995, eBay pioneered the online auction platform and rapidly expanded it to become the world's largest online auctioneer. eBay gained consumer confidence in its services by purporting to maintain several "safety" programs designed to protect consumers in transactions with unknown dealers. 53. For example, eBay designed a "Feedback Forum" which purportedly allowed dealers and consumers to rate a transaction as "Positive", "Negative" or "Neutral" sales experience. A dealer or consumer who achieves a designated level of Positive Feedback is awarded a "Star". 54. In addition to the Feedback Forum, eBay designed a "Power Sellers" endorsement, which purportedly is an award given to select eBay dealers based on the volume of sales and Positive Feedback ratings. 55. In reality, however, eBay's "safety" programs have contributed to enormous damage to the autographed sports memorabilia consumers. For example, the Feedback Forum allows anyone to rate a dealer, even if there has never been a sales transaction between the parties. Thus, Fitzgerald and Scheinman have at least hundreds of Positive Feedback ratings which are unrelated to any sales transactions. Most, if not all, of these Positive Feedback ratings are self-generated or provided by other co-conspiring dealers. 56. Nevertheless, Defendants Fitzgerald and Scheinman have been awarded eBay Stars, giving consumers a false sense of confidence in these dealers. 57. Furthermore, eBay has endorsed both Defendants Fitzgerald and Scheinman as eBay "Power Sellers", adding to consumers false sense of confidence in these dealers. 58. Although access to eBay's services is free, consumers who wish to place auction bids and make sales purchases are required to register with eBay and subscribe to a "User Agreement". 59. eBay's User Agreement and its policies in enforcing the terms of its User Agreement are designed to discourage defrauded consumers from seeking redress. 60. For example, term 3.1 states in relevant part: "Venue. Our site acts as the venue for sellers to list items (or, as appropriate, solicit offers to buy) and buyers to bid on items. We are not involved in the actual transaction between buyers and sellers." However, this provision is a mischaracterization of eBay's role. Since eBay provides a venue for auctions, and functions in the role as an auctioneer, it is involved in the actual transaction between buyers and sellers. 61. For example, term 5.3 states in relevant part: "Fraud. Without limiting any other remedies, eBay may suspend or terminate your account if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with our site." This provision is intended to give consumers a sense of confidence in eBay's services. However, during the Class Period, eBay's has ignored hundreds of complaints about forged sports memorabilia being auctioned on its site. eBay has ignored complaints about the all the individual Defendants who are parties to this suit. 62. And finally, term 17 states in relevant part: "Arbitration. Any controversy or claim arising out of or relating to this Agreement... shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party." eBay is well-aware that Plaintiffs and many members of the Class have incurred actual damages in an amount less than $1,000 and eBay includes this provision with the intent to insulate itself from liability. Plaintiffs and the members of the Class cannot afford to seek redress in individual litigation. The Class' claims for redress are the quintessential types of claims prosecuted as a class action and eBay's attempt to evade its responsibility by means of this provision is unconscionable. 63. eBay has facilitated, and continues to facilitate, a safe-haven for the unscrupulous dealers perpetrating the forged memorabilia scheme. eBay continues to facilitate the scheme because it is motivated by profits, to the detriment of consumers. eBay's revenues are generated from "Placement Fees" and "Success Fees" paid by dealers. Placement Fees are fees charged to dealers for listing an item for auction. Success Fees are percentage fees charged to dealers when an item is sold. 64. eBay has earned, and continues to earn, fees each time an item of forged sports memorabilia is offered for sale and earns additional fees each time an item of forged sports memorabilia is sold. Consequently, eBay has little incentive to discontinue the forged sports memorabilia scheme. 2. eBay Has Violated, And Continues to Violate, California's Autographed Sports Memorabilia Statute 65. In 1992, the California legislature enacted the Autographed Sports Memorabilia ("ASM") statute in response to growing concerns about fraud and forgery in the sports memorabilia industry. The ASM statute generally forbids dealers from representing an item "as a collectible if it was not autographed by the sports personality in his or her hand." Under the ASM statute, a "Dealer" includes: [A]n auctioneer who sells collectibles at a public auction, and also includes persons who are consignors or representatives or agents of auctioneers. See, Cal. Civil Code § 1739.7(a)(4). Thus, since eBay is an auctioneer, it is a dealer of sports memorabilia. 66. The ASM statute requires dealers to provide prescribed COA with signed sports memorabilia. The statute states in relevant part: (b) Whenever a dealer, in selling or offering to sell to a consumer a collectible in or from this state, provides a description of that collectible as being autographed, the dealer shall furnish a certificate of authenticity to the consumer at the time of sale. The certificate of authenticity shall be in writing and shall be signed by the dealer or his or her authorized agent. The certificate of authenticity shall be in at least 10-point boldface type and shall contain the dealer's true legal name and street address. Each certificate of authenticity shall do all of the following: (2) Describe the collectible and specify the name of the sports personality who autographed it. (3) Either specify the purchase price and date of sale or be accompanied by a separate invoice setting forth that information. (4) Contain an express warranty, which shall be conclusively presumed to be part of the bargain, of the authenticity of the collectible. This warranty shall not be negated or limited by reason of the lack of words such as "warrant" or "guarantee" or because the dealer does not have a specific intent or authorization to make the warranty or because any statement relevant to the collectible is or purports to be, or is capable of being, merely the dealer's opinion. See, Cal. Civil Code § 1739.7(b). Despite the express requirement to provide a detailed COA with autographed sports memorabilia, eBay has never complied with this requirement of the ASM statute. In addition, although eBay knew, or should have known, that the Individual Defendants and other sports memorabilia dealers were required to comply with this requirement of the ASM statute, eBay has never taken steps to ensure that the Individual Defendants and other dealers would comply with this requirement of the ASM statute. 67. Furthermore, the statute states in relevant part: Any consumer injured by the failure of a dealer to provide a certificate of authenticity containing the information required by this section, or by a dealer's furnishing of a certificate of authenticity that is false, shall be entitled to recover, in addition to actual damages, a civil penalty in an amount equal to 10 times actual damages, plus court costs, reasonable attorney's fees, interest, and expert witness fees, if applicable, incurred by the consumer in the action. Cal. Civil Code § 1739.7(g) Although Plaintiffs and members of the Class have demanded satisfaction from eBay for failing to provide a COA and/or for furnishing a COA that is false, eBay has failed to refund any monies. 68. eBay has failed to comply with the requirements of the ASM statute. Despite the fact that eBay has been notified that the individual Defendants in this action have been identified as part of a fraudulent scheme, eBay continues to sell the forged sports memorabilia in furtherance of the nationwide scheme. VI. CLAIMS FOR RELIEF COUNT I NEGLIGENCE (Against All Defendants) 69. Plaintiffs and the Class repeat and reallege each of the preceding paragraphs as though fully set forth herein. 70. Defendants owed to Plaintiffs and the Class a duty of reasonable care. Defendants breached their respective duties of care to Plaintiffs and the Class in that defendants were negligent in the performance of the acts described above and as a result committed negligent acts and omissions as set forth above. Such negligence included, among other things, that the Individual Defendants misrepresented the signed sports memorabilia as authentic and failed to disclose that, in fact, they were selling forged sports memorabilia. In addition, eBay misrepresented the safety of purchasing items from the Individual Defendants when, in fact, the Individual Defendants were selling forged sports memorabilia. Moreover, eBay failed to provide Plaintiffs and the Class COA's for sports memorabilia sold through its services. Furthermore, eBay knew or should have known that the Individual Defendants and other sports memorabilia dealers were conducting unlawful practices. Yet, eBay failed to ensure that the Individual Defendants and other sports memorabilia dealers comply with the law. Consequently, defendants failed to exercise due care. 71. As a proximate result of the defendants' negligent conduct, Plaintiff and the Class have sustained and will sustain substantial economic losses and other general and specific damages, in an amount to be determined according to proof at trial. COUNT II VIOLATION OF §§17200, ET SEQ. OF THE CALIFORNIA BUSINESS & PROFESSIONS CODE (Against All Defendants) 72. Plaintiffs and the Class repeat and reallege each of the preceding paragraphs as though fully set forth herein. The claims asserted herein arise out of the same nucleus of operative facts as those alleged under the preceding Count. 73. California Business & Professions Code §17200 prohibits acts of unfair competition, which include "any unlawful, unfair or fraudulent business act or practice." 74. During the Class Period, the Defendants misrepresented the forged sports memorabilia offered for sale in eBay auctions. Such conduct was prohibited by California Civil Code §§ 1572, 1709 and 1710, and California Penal Code § 395 as well as principles of common law. Accordingly, defendants have violated Business & Professions Code § 17200's proscription against engaging in an unlawful business act or practice. 75. Defendants were aware, or should have been aware, at all relevant times, of the fraudulent nature of the sports memorabilia. Although material, Defendants failed to disclose this information to Plaintiffs and the Class. 76. Defendants' misrepresentations and nondisclosures of material facts during the Class Period also constitute a fraudulent business act or practice within the meaning of Business & Professions Code § 17200. Defendants' conduct had a tendency to deceive the consumers because of Defendants' concerted efforts to represent the forged sports memorabilia as genuine. 77. Defendants' use of various forms of marketing to falsely advertise, call attention to, endorse, or give publicity to the sale of forged sports memorabilia by, inter alia, untrue and/or deceptive representations as to the nature and quality of the sports memorabilia and the level of trust and confidence in dealers selling forged sports memorabilia was false or misleading advertising within the meaning of Business & Professions Code §§ 17500, et seq., because defendants either knew or reasonably should have known that such advertising was untrue and/or misleading. Necessarily, defendants' violation of §§ 17500, et seq. also constitutes a violation of Business & Professions Code §§ 17200, et seq. 78. Accordingly, because Defendants have committed unlawful, unfair and/or fraudulent business acts or practices in violation of Business & Professions Code § 17200, and engaged in false and misleading advertising in violation of Business & Professions Code §§ 17500, et seq., plaintiffs, the members of the Class and the general public are entitled to relief under § 17203 and § 17535 which may include (1) orders or judgments enjoining defendants from engaging in further unlawful, unfair or fraudulent acts or practices, or (2) orders of disgorgement or restitution to prevent defendants from retaining any money or property -- including profits from illegal insider trading -- obtained by means of their unlawful, unfair or fraudulent acts or practices. Plaintiffs additionally request that such money or property be impounded by this Court, or that an asset freeze or constructive trust be imposed upon such revenues and profits, to avoid dissipation and/or fraudulent transfers or concealment of such monies by defendants. Plaintiffs, the members of the Class and the general public may be irreparably harmed and/or denied an effective and complete remedy if such an order is not granted. COUNT III VIOLATIONS OF §1739.7 OF THE CALIFORNIA CIVIL CODE (Against eBay) 79. Plaintiffs and the Class repeat and reallege each of the preceding paragraphs as though fully set forth herein. The claims asserted herein arise out of the same nucleus of operative facts as those alleged under the preceding Counts. 80. eBay is a "dealer" as that term is defined in § 1739.7 of the California Civil Code. Plaintiff and the Class members are "consumers," as that term is defined in § 1739.7 of the California Civil Code. The sports memorabilia complained of herein are "collectibles" as defined in § 1739.7 of the California Civil Code. 81. During the Class Period, eBay has sold or offered to sell forged sports memorabilia in violation of § 1739.7 of the California Civil Code. Among other things, eBay has failed to provide consumers with a COA containing the required disclosures and express warranties for autographed collectibles auctioned through its services, has auctioned forged collectibles, and has failed to properly refund or rebate losses suffered by consumers. 82. Additionally, during the Class Period, eBay aided and abetted the Individual Defendants in violating the requirements of § 1739.7 of the California Civil Code, while knowing that the Individual Defendants were not providing the required COA's. 83. Plaintiff and other Class members have been directly and proximately damaged by eBay's practices in an amount to be determined at trial, but currently estimated to be in excess of 10 million dollars for Plaintiffs and the members of the Class as a whole. 84. Plaintiffs as an individuals are entitled to ten times their actual damages pursuant to § 1739.7 of the California Civil Code, and together with the other Class members, is entitled to any additional relief that may be afforded by the California Rules of Civil Procedure. COUNT IV INJUNCTIVE RELIEF 85. Plaintiffs and the Class repeat and reallege each of the preceding paragraphs as though fully set forth herein. The claims asserted herein arise out of the same nucleus of operative facts as those alleged under the preceding Counts. 86. eBay's actions as complained of herein have existed and persisted since September 1995. On the date of the filing of this action, a search on eBay's website resulted in over one thousand items of forged sports memorabilia listed for auction. In addition, over one hundred items of forged sports memorabilia created and distributed by the Individual Defendants are listed for auction. Unless an injunction is entered against eBay requiring that it either refrain from selling forged sports memorabilia through its services and capabilities, or alternatively, that it invest adequate resources to restrict the sale of forged sports memorabilia, Plaintiff and the Class members will suffer irreparable harm. 87. The threatened injury to Plaintiff and the Class members in the absence of an injunction outweighs any potential harm such an injunction would cause to eBay. 88. Because of the growing significance of the Internet, and specifically Internet auctions (which currently accounts for nearly half of all commercial transactions on the Internet), the grant of such injunctive relief is necessary to protect and promote the integrity and safety of commerce on the Internet and the general economy of the United States. Accordingly, the relief requested will promote the public interest in addition to the interests of Plaintiff and the Class members. Dated: April 19, 2000 KRAUSE & KALFAYAN ____________________________ James C. Krause, Esq. Attorney for Plaintiffs /// OF COUNSEL: Burton H. Finkelstein, Esq. FINKELSTEIN, THOMPSON & LOUGHRAN 1055 Thomas Jefferson Street, N.W. Suite 601 Washington, DC 20007 TEL: (202) 337-8000 On Mon, 08 Mar 2004 16:57:28 -0500, dahoov2 wrote: reason is for this email which I received today from guess... Saw your weblink and noticed this statement. "Another name to watch for is Donald Frangipani who was convicted of forging COA's...." You are just another misinformed asshole who is spreading false rumors. Get your facts right before you get sued. Frangipani has never been charged, let alone convicted of anything to do with the forgery investigations. So this guy knows, I've been round and round for months with the threatened to be sued by a lawyer in NY. He kept harrassing me for his phone number being on my website. I'd of removed it (although he was delusional as the number for for a comic book company).... I'd of removed it immediately had he of spoken to me in a nice manner. But the very first email was nasty, rude, and he didn't sign his name. I did some research found out all about him, and contacted the NY Bar Association. Though they couldn't do anything about his harrassment, they did tell me what I could do. I chose to contact his boss. I forwarded him several of the saved emails and guess what? The number remains and the guy has "let it go". I told his boss that when the guy would ask me nicely and politely to remove it, I'd kindly oblige. That's why it remains...he was a jerk. As for this jerkwad, same goes for him. There are many articles on the net about Mr. Franipani to support what I said. All I did was mention he was named in these articles. Now, I think I'll go ahead, put in the links, post to a few more places to warn people. His email to me is indicative to his ethics and morals. Therefore his name will remain. But please do not give anyone information about the Xlist or other such things outside of this group without asking first. Thanks. I don't need other crap email like that. |
It would be nice to see Ebay get it's hide nailed to the wall when/if this
is settled. I'm curious as to how much the website will change in regards to how it handles business and to the handling of customer complaints. What started out as a good idea has morphed into nothing more than a profit machine. As the lawsuit states, Ebay has been warned of illegal activities so much that they stopped accepting direct feedback from their customers. I do hope that is brought to light during the suit too. If someone know that something has a false signature, they should be allowed to communicate directly with the buyer to warn them. What Ebay has done is eliminate that option. They are saying "screw you" to the victim/possible victim and hello to the dollar signs. As I said, I hope Ebay gets nailed to the wall. -- Mike Gummby3 ~~ Star Collector ~~ www.star-collector.net Autograph Authentication Guide www.star-collector.net/authenticationguide.htm "dahoov2" wrote in message ... from www.beckett.com the copy of the lawsuit filing. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO SNIP --- Outgoing mail is certified Virus Free. Checked by AVG anti-virus system (http://www.grisoft.com). Version: 6.0.598 / Virus Database: 380 - Release Date: 3/1/2004 |
I hear ya Mike and do agree. But too, I wonder what ramifications it
will have for us. On Mon, 8 Mar 2004 16:54:59 -0600, "Gummby3" wrote: It would be nice to see Ebay get it's hide nailed to the wall when/if this is settled. I'm curious as to how much the website will change in regards to how it handles business and to the handling of customer complaints. What started out as a good idea has morphed into nothing more than a profit machine. As the lawsuit states, Ebay has been warned of illegal activities so much that they stopped accepting direct feedback from their customers. I do hope that is brought to light during the suit too. If someone know that something has a false signature, they should be allowed to communicate directly with the buyer to warn them. What Ebay has done is eliminate that option. They are saying "screw you" to the victim/possible victim and hello to the dollar signs. As I said, I hope Ebay gets nailed to the wall. |
Whoa...ebay themselves used to have a huge thing on DF and so did the UACC.
Where did this guy get off? I am glad you took care of the matter but that was very vicious. |
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