Plaintiffs adequately allege that Upper Deck's sale of trading cards satisfies this requirement. The element of chance is represented by the random assortment of trading cards found in a package of Upper Deck cards. The New Jersey court was thinking of the numbers a person receives when he plays the lottery, but any object can serve as a representation of plaintiff's chance to win. Here, plaintiffs purchased packages of trading cards. The packages are sealed and contain a random assortment of trading cards. It is unclear what physical shuffling process is used by Upper Deck to randomize the cards once they are manufactured, but the packages state that "this pack contains a random assortment" of trading cards. FAC, Ex. A. A purchaser does not know whether he has received a "chase" card until he opens the package. Thus, the random assortment of cards placed in a sealed package is the medium in which the chance of winning a "chase" card is embodied.
Defendant also argues that whatever value the "chase" cards have is based solely on the "subjective feelings and whims of sports cards fans." This is untrue. The value of the "chase" cards is a dollar value set by the secondary market and readily ascertainable in published price guides. FAC P 4. Plaintiffs allege that they purchase these cards for the chance of winning a chase card which can then be immediately sold in the secondary market. FAC P 4. The ready availability of the secondary market makes these chase cards almost as good as cash. It takes no more effort to sell them back at a hobby shop than it does to turn in a winning scratch-off lottery ticket. Plaintiffs point out that the New Jersey Attorney General has opined that the statutory definition of "something of value" encompasses money or property, or tangibles or intangibles (including personal services). Op. N.J. Atty. Gen. No. 6-1983 (June 1, 1983) (bus tour promotion where bonus available only to those bus patrons selected by drawing constitutes unlawful gambling because part of patron's ticket price was consideration for chance of winning the bonus). Plaintiffs adequately allege that the chase cards have a cash value readily ascertainable in the secondary market which makes them a valuable prize.
Defendant argues that the fact that people in the secondary market will pay cash for these cards "is beyond Upper Deck's control." Def. Mem. P&A's p. 13. This argument is disingenuous. The manufacturers of trading cards are inextricably linked to the secondary market. The relative numbers of cards produced by manufacturers has a direct effect on their value in the secondary market. In order to inflate the value of cards on the secondary market, manufacturers produce the most popular cards in limited numbers. Simple supply and demand economics dictates that high demand coupled with low availability will cause the price to skyrocket. When the price of cards on the secondary market rises, it allows the manufacturers to charge more for their sealed packages of cards. The more the chase card is worth, the more people are willing to pay for the chance of receiving a valuable chase card.
If the manufacturers were truly out to sell people cards containing their favorite players, they would produce larger numbers of cards of the most popular players. This way, everyone who buys a pack of cards would be almost guaranteed to receive the cards they desire. Instead, by manufacturing cards of the most popular players in limited quantities, purchasers are required to buy many more packages of cards in order to obtain the cards they desire.
The Court finds that plaintiffs have stated a cause of action under RICO because they allege that the prices of the chase cards on the secondary market have been manipulated to the point where they are disproportionately higher than the value of common cards. They are so valuable that people gamble by buying many packages of cards in the hopes of receiving a chase card which can then be exchanged for cash. The gravamen of plaintiff's complaint is not that people purchase the packages to obtain a card of their favorite player, but that they purchase the packages to obtain a small piece of cardboard which can be exchanged for cash. Whether the piece of cardboard contains lotto numbers, scratch-off boxes, or the face of Michael Jordan, it is still gambling.
In sum, by alleging that Upper Deck's manufacture and sale of "chase" cards contains the elements of chance, consideration and prize, plaintiffs have stated a claim under 18 U.S.C. § 1962(c). On a motion to dismiss, the Court must accept as true all allegations in plaintiffs' complaint. Parks School of Business, 51 F.3d at 1484. The Court declines to change its earlier ruling.
2. Whether Plaintiff Adequately Alleges Injury Under 18 U.S.C. § 1962
Upper Deck argues that plaintiffs lack standing because they have not sustained an "injury" to support their RICO claim. Plaintiffs must suffer an injury to their business or property. 18 U.S.C. § 1964(c).
As noted in the Court's March 11, 1997 Order, the law is clear that the plaintiffs cannot recover for their disappointment or other feelings experienced in not obtaining "chase cards." See Oscar v. University Students Co-operative Ass'n, 965 F.2d 783 (9th Cir.) (holding that a neighbor renting an apartment across from a building where the tenants sold drugs lacked standing because annoyance caused by the drug related activities did not constitute an "injury" for purposes of RICO), cert. denied, 506 U.S. 1020, 121 L. Ed. 2d 581, 113 S. Ct. 655 (1992). Likewise, they cannot recover for a developed "habit" of buying trading cards to obtain the "chase cards," see Allman v. Philip Morris, Inc., 865 F. Supp. 665, 667-68 (S.D. Cal. 1994) (addiction to nicotine not an injury to business or property even if it has economic consequences), or speculative "lost profits" in the secondary market. See Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303 (9th Cir. 1992), cert. denied, 507 U.S. 1004, 123 L. Ed. 2d 266, 113 S. Ct. 1644 (1993) (subcontractors' lost profits claim too speculative). Upper Deck also argues that plaintiffs cannot recover their purchase price because they have already received the fair equivalent of that price, packages of trading cards.
Plaintiffs are not suing because they were disappointed over not getting a Ken Griffey, Jr. card, but because they have suffered gambling losses. They allege that a portion of the price paid for a package of Upper Deck cards is consideration for a chance to receive a chase card. They do not care whose face is on the card; they only care about its value in the secondary market. According to plaintiffs' allegations, this is no different than dropping a quarter in the slot machine. Plaintiffs have suffered a tangible loss in that they have spent a fixed amount on chances to receive chase cards.
As the Court noted in its previous order, gambling losses are recoverable under both New York and New Jersey law. New York General Obligations Law Chapter 24-A § 5-423 provides:
Any person who shall purchase any share, interest, ticket ... or  any portion of any lottery, may sue for and recover double the sum of money, and double the value of goods or things in action, which he may have paid or delivered in consideration of such purchases, with double costs of suit.
New Jersey Statutes Annotated Title 2A Chapter 40 § 2 provides:
Whoever pays, delivers or deposits any money, property or thing in action upon the event of any wager or bet prohibited by this chapter or by any law of this state, may sue for and recover the same of the winner, or person to whom the same shall be paid or delivered[.]
Under both of these statutes, plaintiffs have standing to sue to recover their gambling losses, but they must deduct the value of the cards they have received.
Plaintiffs have lost property, their money, and can recover that lost property under RICO. See 18 U.S.C. § 1964(c). The Court declines to change its earlier ruling.
D. Whether Plaintiff Can State a Claim Under Bus. & Prof. Code § 17200
In their amended complaint, plaintiffs assert a cause of action for unfair competition pursuant to Cal. Bus. & Prof. Code § 17200 et seq. Under this statute, the Court may enjoin any person "performing or proposing to perform an act of unfair competition within this state[.]" Cal. Bus. and Prof. Code § 17203. Unfair competition is defined as any "unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising[.]" Cal Bus. and Prof. Code § 17200.
Plaintiffs' complaint merely states that "Upper Deck's marketing of sports and entertainment trading cards, as described herein, constitutes an unlawful, unfair and/or fraudulent business practice[.]" FAC P 57. Plaintiffs argue that since defendant's manufacture and sale of trading cards violates both RICO and New York and New Jersey gambling statutes, it is an unlawful business practice and can be enjoined under Cal. Bus. & Prof. Code § 17203.
Section 17200 "has been liberally construed so as not to be limited to traditional anticompetitive practices." People v. Erotic Words and Pictures, Inc., 106 Cal. App. 3d 315, 318, 165 Cal. Rptr. 73 (1980) (applying section 17200 to the commercial distribution of obscene materials). The California Supreme Court has stated that the addition of the word "unlawful" to the statute in 1963 was intended "to extend the meaning of unfair competition to anything that can properly be called a business practice and that at the same time is forbidden by law." Barquis v. Merchants Collection Ass'n, 7 Cal. 3d 94, 112-13, 101 Cal. Rptr. 745, 496 P.2d 817 (1972). The California Supreme Court further explained that
in essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice 'borrows' violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.