A lawsuit by a sports memorabilia dealer who allegedly received bogus items from the New York Giants, quarterback Eli Manning and others in the team has been sent to federal court.
Attorneys for the Giants filed a notice of removal on Feb. 27 in the District of New Jersey, claiming some of plaintiff Eric Inselberg’s claims raise questions of federal patent law.
Although Inselberg has not explicitly alleged patent infringement, he has asserted “claims that, at the very least, require resolution of a substantial question of patent law,” team counsel William O’Shaughnessy of McCarter & English in Newark wrote in his removal petition.
According to a complaint filed Jan. 29 in Bergen County Superior Court, Inselberg, a former Giants business associate, for years bought legitimate jerseys and other items from team equipment managers Ed Wagner Jr., Joseph Skiba and Edward Skiba, Joseph’s brother. Inselberg, in turn, sold the items—some worn in games, some not—through his sports memorabilia business.
But Inselberg alleges that all the while, Giants locker room staff were doctoring helmets and jerseys to look game-worn when in fact they weren’t—at the direction of players, mainly Manning.
In 2010 and 2011, federal prosecutors and the FBI questioned Wagner and the Skibas as part of a large-scale investigation into memorabilia dealers falsely marketing pro football gear as game-worn and selling the items at a premium.
Wagner and the Skibas allegedly lied about their relationship with Inselberg and otherwise distanced themselves from him, making it appear Inselberg dealt many more supposedly game-worn items to collectors than he would have been able to obtain from the team.
Mail fraud charges against Inselberg ultimately were dropped at the request of a prosecutor, but he claims the ordeal cost him millions in lost business, $700,000 in legal fees and various emotional injuries.
Inselberg alleges he had other bad business dealings with the organization. He says the team implemented, without compensating him, an in-stadium wireless marketing program that he invented which allows fan participation.
Inselberg also claims that he, along with the Skibas, designed a helmet meant to curtail concussions and patented it. He provided them with a line of credit, but when the brothers ceased contact with him, he allowed the patents to lapse and lost a $200,000 investment, he alleges.
Inselberg, though charging unjust enrichment, breach of contract and other common-law causes of action, has not asserted patent infringement.
But O’Shaughnessy contends issues related to the wireless program are governed by the Patent Act and thus are removable to federal court.
“Simply put, the allegation in this paragraph that the Giants Defendants misappropriated Plaintiff’s patented wireless marketing concepts constitutes an allegation of patent infringement,” he said.
Federal jurisdiction arises when the plaintiff’s “right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.”
O’Shaughnessy added that when a federal court has jurisdiction over one claim, it has supplemental jurisdiction over any others under 28 U.S.C. 1367.
Inselberg’s attorneys could petition the court for remand. One of them, Red Bank solo Michael Kasanoff, says that they’re weighing their options.
The Skibas’ lawyer, Gerald Krovatin of Krovatin Klingeman in Newark, says: “We join in the removal petition and we think the federal forum is appropriate.”
O’Shaughnessy didn’t return a call Monday. Neither did Louis Solomon of Cadwalader, Wickersham & Taft in New York, Manning’s counsel, or Dennis Drasco of Lum, Drasco & Positan in Roseland, Wagner’s counsel.
Since the complaint was filed, Manning and the Giants have publicly called the suit meritless and vowed to defend the claims.
The case is assigned to U.S. District Judge William Martini.