March 15, 2015 by
Boston memorabilia house RR Auction emerged victorious from a Santa Barbara, California courtroom Friday, when an attempt to bring a class action lawsuit against the company failed the basic tests; including that no one wanted to join the lawsuit.
Superior Court Judge Donna Geck shot down the attempt by Michael Johnson and his lawyer, Dugan Kelley of Christman Kelley & Clarke, to certify the class action in a tentative ruling posted two days before. Johnson’s lawyers didn’t object to the Court’s ruling during the March 13 hearing that lasted only a few minutes.
RR Auction VP Robert Livingston said they spent 2 1/2 years defending themselves against a man Livingston calls a serial litigator who filed a frivolous lawsuit. Someone he claims was once looking to set up a competing autograph business.
Prior Law Firm Sued
Johnson is also suing the first law firm that represented him in this case for malpractice, McCarthy & Kroes, alleging negligence, breach of fiduciary duty, declaratory relief and financial elder abuse.
Among Johnson’s allegations in the suit against his former law firm is that “…the Defendant [McCarthy & Kroes] pled causes of action that were frivolous, untenable, and contrary to California law (e.g. unjust enrichment) thereby driving up the costs, fees, and adding further delay to a case that should have proceeded expeditiously.”
“That’s one thing Johnson and we agree on,” said Livingston.
Johnson claims that over $130,000 in autographs he purchased from RR were not authentic, although in his January 30, 2015 declaration he lists only 12 signed items from RR that he sent to authenticators and were rejected, for which he paid $8,008 plus 20% commission ($9,610). Johnson claimed that based on those 12, the authenticator, PSA/DNA, determined that all of the autographs he purchased from RR were forgeries.
Autographs Not Returned
In their filings, RR claims that they were ready to honor their lifetime guarantee of authenticity and refund Johnson’s money, even though they believe the 12 items are actually genuine. But Johnson did not return the autographs to RR so they could issue refunds.
Johnson does not dispute that. In Paragraphs 14 & 15 of his March 6, 2015 declaration, Johnson states:
14. Also, Defendant claims that I somehow did not meet a condition of the guarantee because I allegedly did not return the items to RR Auction. But this argument is also misleading. RR Auction’s “guarantee” between 2008 and 2012 did not state a buyer had to return an autographed item that was found to be a forgery to RR Auction before a refund is due. Nor did the RR guarantee between 2008 and 2012 require a buyer who purchased an autographed item from RR Auction that was later found to be a forgery to send the item(s) first to RR Auction before that buyer could get a refund. Instead, the RR Auction guarantee stated that RR Auction, “may ask the buyer to provide documentation” from the third party authenticator who deemed the autographed a forgery.
15. Nor did RR Auction’s guarantee state between 2008 and 2012 that RR Auction or any of its employees or owners had to physically see or inspect the items first before a refund was given that buyer. Similarly, RR Auction’s guarantee did not state that Defendant had to “determine” or “verify” that the forged item the buyer was requesting a refund on was purchased from RR Auction as a condition precedent to honoring the guarantee.
He is the first person in RR’s history, the company says, to demand a refund while also refusing to return the goods in question.
Johnson set up a website for the lawsuit last fall, rrauctionlawsuit.com, to try to get other California clients of RR to join the class action. He posted the deposition videos of R&R managers, something rarely done in active lawsuits, and an ever-growing list of people whose video depositions he threatened to take, including Autograph magazine’s publisher and community manager of Autograph Magazine Live, Steven Cyrkin.
Johnson’s pleadings claimed that at least 1,000 Californians purchased autographs from RR between 2008-2012 and were potential members of the class. It turns out there were only 393. Twelve of them had contacted RR with authenticity concerns during that period. All 9 who asked a refund under the guarantee got one.
In February Things Got a Little Weird
On February 6 of this year, Johnson’s lawyer Dugan Kelley started to email settlement demands to R&R attorney, Keith Attlesey, threatening to go to the national press, including The Boston Globe, ESPN and The New York Daily News, if RR Auction didn’t settle for $1,250,000 within a week.
The settlement demands escalated weekly, and were scheduled to increase to $5 million before the March 13 hearing to certify the class action.
In a February 24 email to Attlesey, stating that the then-settlement demand of $2,750,000 would expire in three days, Kelley wrote “I have recently come into information bearing on criminal activity as well.”
Livingston calls the emails “litigation by extortion.”
On March 6, Kelley filed a 119-page declaration that entered as evidence hearsay statements from a 2008 affidavit by former RR employee Karen Burris accusing RR of fraud. What Kelley didn’t reveal was that Burris wrote the affidavit after R&R fired her when they discovered that she and her husband, William Burris, had embezzled what would turn out to be more than $450,000 from the company between 2004-2008. R&R filed a police report within a few days after her firing.
Karen Burris committed suicide shortly thereafter. RR Auction eventually settled their lawsuit against Burris’ husband and the police ended their investigation after he paid back a portion of the money.
In the same pleading, Kelley also attached a New York Daily News article about William Boehm, an IT specialist hired by RR to maintain their software. Boehm recently pled guilty to lying to the FBI while employed at an unrelated company, Mastro Auctions, in Chicago. Kelley also added 64 pages from that case into evidence.
“It mattered little to Dugan Kelley that his “information” didn’t supply a scintilla of evidence that RR had engaged in criminal behavior, beyond the hearsay, inadmissible allegations Karen Burris made as a bargaining chip after she was caught,” said Livingston.
Livingston calls the whole lawsuit a set-up. “Johnson clearly wasn’t interested in just a refund.”
Johnson has filed nine different civil actions over the last 25 years, including suing his sister and brother-in-law.
While he could continue the lawsuit against RR on his own, Johnson has lost the ability for it to be class action. Judge Geck ruled that even if there were other aggrieved parties, each memorabilia item is different and authenticated differently, and therefore it would be up to individuals to file suit. A class action needs a similar product and a similar problem to go forth.
RR’s attorney filed objections during the hearing to the Burris and Boehm pleadings, in expectation of a Johnson appeal.
Asked about the outcome, one of Johnson’s other lawyers, Matthew Clarke, expressed disappointment but said “Mr. Johnson is dedicated to the case.”
The law firm later sent out a press release, stating that “In spite of the Court’s ruling on class certification, Mr. Johnson and his attorneys, Christman, Kelley & Clarke PC, are moving forward with Mr. Johnson’s lawsuit against R&R Auction.”
But RR Auction was relieved after hearing Judge Geck’s ruling. A troublesome chapter in its history has ended.
“We’re very pleased with the outcome,” said Keith Attlesey after the decision. “It puts to rest a lot of attacks that Johnson and others have made against RR Auction’s sterling reputation.”
Article is courtesy of Autograph Magazine http://autographmagazine.com/court-rejects-class-action-lawsuit-against-rr-auction
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Bankers Trust Company check, 8.25 x 3, filled out in type and signed by Monroe, payable to Hedda Rosten for $65.85, August 25, 1961. In fine condition, with a central vertical fold, trivial soiling to right edge, and expected bank stamps and cancellation holes. Writers Norman and Hedda Rosten first met Monroe in 1955 when their friend, legendary photographer Sam Shaw, arrived at their Brooklyn apartment with the blonde starlet by his side. Best friend and former roommate to Arthur Miller’s soon-to-be ex-wife Mary—thanks to Marilyn—Hedda was initially hesitant to befriend her, but as time passed, the Rostens became two of Monroe’s most trusted friends. When Marilyn and Miller married the following year, Hedda served as her maid of honor. A nicely signed check from a difficult period in Monroe’s life, as she spent the end of 1961 recuperating from a variety of medical and emotional issues. Pre-certified PSA/DNA.
Vintage 3.25 x 5.25 exhibit card of Cobb in his Detroit uniform, with printing at the bottom of the card identifying his team as Philadelphia, nicely signed in fountain pen, “Ty Cobb.” In fine condition. Cobb signed with the Philadelphia Athletics in 1927, after being cleared in a game fixing scandal brought about by Dutch Leonard. Pre-certified PSA/DNA.
Vintage pearl-finish 8 x 10 full-length photo of Ruth at the plate in his Yankee’s road uniform, with several photographers in the background, beautifully signed in fountain pen, “Sincerely, Babe Ruth,” and signed in black ballpoint, “Best wishes, Hank Aaron.” A trivial brush to the dot of Ruth’s “i,” a few creases, and some mild rippling to each edge, otherwise fine condition. A very uncommon pairing of the two hitting legends, boasting an exceptionally large and bold Ruth signature. Pre-certified PSA/DNA
Exceptionally desirable 1963 Parlophone mono first pressing of the Please Please Me album, signed on the reverse in blue ballpoint by John Lennon, Paul McCartney, George Harrison, and Ringo Starr. Scattered soiling, light creases, and small area of surface loss above the album name on the reverse, otherwise fine condition. The record is included. Accompanied by a letter of provenance from the original recipient, in part: “I loved Paul McCartney, he was my first crush. I got this album signed—Fairfield Hall at Croydon around 1963/64…the Beatles had just released Please Please Me and they weren’t famous then.” The Beatles performed twice at Croydon’s Fairfield Halls in 1963, the first show coming on April 25, 1963—just a month after the release of Please Please Me, and most likely the date this was signed. They had come to national attention in January with the release of the ‘Please Please Me’ single, and they rushed to record and publish this album to capitalize on its success. A fabulous uninscribed early example of the first pressing of the Beatles’ very first album—a magnificent piece of music history. Pre-certified REAL.
An interesting cosmonaut pilot survival kit contained within an olive drab canvas bag, stamped on the front with part numbers, “HA3-7, 9104917.” The main kit is inside a removable interior pouch that has the same part numbers stamped on the front, with several survival materials held within the form-fitting foam case by thick gray elastic bands. Items in this kit include: a looped razor-wire saw, a compass, fishing equipment, a medical kit, boxes for flares and bullets (empty), flashlight, matches, signal mirror, a plastic box for crackers or other food, and other items. Other items in the large canvas bag include a pair of short folding metal skis and water purification supplies. A booklet inside the kit is dated 1989. Some items originally held within the case may no longer be present. In overall very good to fine condition. These survival kits were designed so that Soviet pilots would have the supplies necessary for survival in case of a crash landing. As bullets would have been included in this kit, the pilot would also have carried a gun—possibly the intriguing TP-82, a combination shotgun-machete designed for hunting, firing distress beacons, protection from the wolves and bears of Siberia and, potentially, as a defensive weapon against hostile foreign nationals. An unusual and fascinating discussion piece.
Exceptional color 14 x 11 high-quality heavy paperstock photo of the Apollo 1 crew in their blue flight suits, signed in thin felt tip by all three: “Edward H. White II,” “Gus Grissom,” and “Roger Chaffee.” In fine condition, with minimal professional restorations comprised of smoothed light creases (most noticeably a diagonal crease unobtrusively passing through Grissom’s eyes) and a few repaired tiny edge tears. The stock of this photo is a light, finely textured paper seemingly excised from a coffee table book, poster, or large program. Fully signed Apollo 1 photos are very scarce to begin with, and oversized versions are virtually impossible to find. As an extremely appealing uninscribed example, this is a superior piece and one of the great rarities in space collecting. Pre-certified Steve Zarelli.
Flown embroidered Apollo 12 mission patch, 4″ in diameter, signed and flight-certified on the reverse in black felt tip, “Flown to the Moon on Apollo 12. From my personal collection. Walt Cunningham, Apollo 7.” In fine condition. Accompanied by a signed certificate of authenticity from Cunningham, in part: “This flown Apollo 12 patch was given to me by my good friend, Alan Bean, Apollo 12 LMP…The patch has been continuously in my possession since that time.” An uncommon and desirable example of a flown artifact given by one Apollo astronaut to another. Pre-certified Steve Zarelli.
One of only 32 dual-certified Lunar Bible 50-Page ‘Text-Fragments’ presented in a modern Faberge Egg. The iconic ‘Lunar Bible’ represents the first Bible, the first complete scripture, and indeed the first true book ever carried by Man to landfall on another celestial world. A complete Lunar Bible contains all 1,245 pages of the King James Bible, and was printed as a ‘Microform’ tablet (the only format possible for flight to the lunar surface). One hundred identical complete copies of the Lunar Bible landed on the Moon during Apollo 14 within the personal ‘PPK’ bag of moonwalker Edgar D. Mitchell, after having been previously flown to the Moon aboard the ill-fated Apollo 13 mission. After the mission, a small number were segmented into both 50-page and 2-page sizes by Reverend John M. Stout to maximize the potential number of recipients. The accompanying 50-page copy is one of only 32-examples that were officially flight-certified by both Mitchell and James W. Stout of the former ‘Apollo Prayer League Governing Committee’ during the ‘Lunar Bible Certification Project’ of 2000 and 2001, and then encapsulated within modern Faberge Eggs. Accompanied by a two-page certificate of authenticity signed by Mitchell and Stout, housed within a nice leather-like presentation folder. This lot is of profound significance not only to the space community as a twice-flown and once-landed lunar artifact, but also to the religious, rare book, and Masonic communities (Edgar Mitchell is a freemason). Several of the 32 copies are already permanently off the market, with an example having been acquired by the State of Georgia for their rare-book holdings, and two more in the personal space collection of Edgar Mitchell and James W. Stout. Another 50-page example is on indefinite loan to the Atlanta Masonic Library and Museum, and more of these precious few Faberge examples may become permanently institutionalized and unavailable to collectors in coming years. You may read ‘The Story of the First Lunar Bible’ at www.LunarBible.com.