It now appears the tight end will mimic Brady, the defendant in state and federal lawsuits aimed at his promotion of Bitcoin, in another way: Account holders in Voyager Digital, which is in Chapter 11 proceedings, have their sights set on Gronkowski.
The plaintiffs in a class-action lawsuit against the Dallas Mavericks and the team’s owner Mark Cuban, sued for promoting Voyager, issued a subpoena to Gronkowski last month, according to court documents. Gronkowski in September 2021 endorsed Voyager, becoming a brand ambassador.
Gronkowski has not been named a defendant in the lawsuit, at least not yet. But in court filings, and in an email, the plaintiffs’ attorneys make it clear they are considering suing the likely Hall of Famer.
“Voyager brand ambassadors from the NFL, NASCAR can be added ‘even near trial,’” the plaintiffs’ lawyer wrote in a Dec. 30 email to Cuban’s counsel. The eight-page email, added as an exhibit to a motion filed last week, shows the Gronkowski subpoena added as an attachment, though it is not available in the court filing. NASCAR driver Landon Cassill was also a Voyager endorser.
“We have set the depositions of Rob Gronkowski,” Adam Moskowitz, the plaintiffs’ attorney, wrote in the email.
Asked if the retired tight end is likely to be a defendant, Moskowitz wrote to The Athletic, “He is not a named defendant yet, but the court gave us until Feb. 24 to file an amended complaint against Voyager (such as adding defendants, claims and plaintiffs), we know he was a ‘Brand Ambassador’ for Voyager who ‘promoted’ the unsecured securities (the ‘interest accounts’). We served him with a third-party subpoena, and we have named all of the FTX ‘Brand Ambassadors’ in our pending federal class action.”
Gronkowski’s agent, Drew Rosenhaus, declined to comment.
Moskowitz’s reference to FTX refers to a class-action lawsuit he’s filed against Brady, his ex-wife Gisele Bündchen, Naomi Osaka, Shohei Ohtani, David Ortiz and other celebrities like Larry David, for their promotion of FTX, which like Voyager is also in Chapter 11 proceedings. The lawyer also has a state case in Florida aimed at Brady and Ortiz.
Tom Brady, David Ortiz sued again over FTX endorsements
These lawsuits all raise the issue of what culpability celebrity endorsers have for touting a financial product that fails. Could Brady, Gronkowski and their peers be on the hook for losses as the cryptocurrency ecosystem craters?
A ruling in a case brought against Floyd Mayweather, Kim Kardashian and basketball Hall of Famer Paul Pierce suggested no. In dismissing a lawsuit alleging the celebrities’ promotion of failed cryptocurrency Ethereum Max was a fraud, federal judge Michael Fitzgerald wrote last year, “The court acknowledges that this action raises legitimate concerns over celebrities’ ability to readily persuade millions of undiscerning followers to buy snake oil with unprecedented ease and reach. But, while the law certainly places limits on those advertisers, it also expects investors to act reasonably before basing their bets on the zeitgeist of the moment.”
When Voyager named Gronkowski an endorser, the press release touting the alliance quoted him saying, “The Voyager app is so easy to use right from the start. It has a big selection of over 60 different coins and pays up to 12 percent annual rewards, depending on the coins you hold. When I looked at the competition, it seemed like a no-brainer. Together, Voyager and I are bringing crypto to everyone.”
Meanwhile, the underlying lawsuit that Gronkowski may be added to is getting heated, with the plaintiffs accusing the Mavs and Cuban of seeking to make a plaintiff who may have cancer travel for a deposition. Moskowitz in court filings is seeking to replace the allegedly sick named plaintiff with new litigants.
“Mr. Gold is unable to proceed with litigating his claim or acting in a class representative capacity as he has just, unfortunately, been informed he may have advanced prostate cancer and is dealing with significant medical issues in that regard,” Moskowitz wrote of Sanford Gold. “Defendants have insisted on requiring Mr. Gold to travel to for his deposition on Jan. 24, 2023.”
In a response filed this week, Cuban’s lawyers call Gold “a three-time convicted felon with an undisputed history of engaging in financial fraud.” And they wrote as recently as a Jan. 6 discovery hearing, “There was no indication at the hearing, by contrast, that Sanford Gold may have health problems, even though the timing and location of his deposition was discussed.”
The Cuban side does not object to removing Gold, but opposes the addition of more named plaintiffs and is seeking a hearing on the dispute.
Cuban stands accused of not just promoting Voyager through the Mavericks’ team sponsorship with the platform, but through crypto conferences held in Miami, and online. The allegation, as with the FTX and other claims, is in part the athletes were hawking unlicensed securities
In the motion last week, Moskowitz wrote, “Defendants’ audacious and, in some cases, abusive tactics in discovery (none of which are based on any legal authority) is apparently a promise they made to their client, namely that if they … attack and attempt to discredit the current Florida plaintiff representatives, citing prior events that had nothing to do with the purchase of the unregistered EPAs (Earn Program Accounts) … will somehow prove plaintiffs do not have standing and will therefore quickly win the case before Mr. Cuban has to answer for the damages he caused them and the classes they seek to represent.”
The court has ruled the plaintiff can depose Cuban next month. Mavs’ executives Ryan Mackey (senior vice president of Corporate Partnerships) and Kyle Tapply (Senior Director of Corporate Partnerships) are also scheduled for depositions.
(Photo: Kim Klement / USA Today)