NEW YORK (Legal Newsline) - Class action lawyers have lost their claim the card company Topps scams customers through its redemption card promotion.
New York federal judge Lorna Schofield granted Topps' motion to dismiss Jan. 25 in a lawsuit brought by attorneys Spencer Sheehan, Steffan Keeton and Scott Borison. The suit complained card buyers could only obtain valuable specialty cards is buy purchasing a pack of regular cards.
Redemption cards found in regular packs allow the buyer to enter a special code to win specialty cards. The suit called it an unlawful lottery under New York law, which bars lotteries where players pay for a chance to win something of value.
But the plaintiff is from Washington, D.C., and failed to establish a nexus that would trigger New York law, Judge Schofield wrote. She also failed to provide notice required under New York law for a breach of warranty claim.
Her lawsuit said she "hereby provides notice."
"Whether the required notice for a breach of warranty claim must be made pre-lawsuit or can be accomplished by commencing litigation is an open question, and courts in this District have split in answering it," Schofield wrote, adding more courts have found a lawsuit is not sufficient notice.
"This Court similarly concludes that the New York Court of Appeals, if faced with this question, would hold that pre-suit notice is required for a breach of warranty claim. This reading comports with the statutory text, which requires a buyer to provide notice of the breach of warranty 'or be barred from any remedy.'
"This language does not make sense if the act of pursuing a remedy would inherently provide notice to a merchant."