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mike1I began in the auction business in 1979. We opened an auction school (The Ohio Auction School) in 1999 and about seven years later, Indiana Auctioneers Association Board member Sarah Minor asked me to teach some Indiana Auctioneer CE in and around Indiana.

Since opening an auction school, and especially since being asked to teach auctioneer continuing education, I have become intensely interested in auction law and customary practice.

My expertise has allowed me to teach auctioneer continuing education in Ohio, Indiana, Kentucky, Michigan, Virginia, West Virginia, North Carolina. Texas, Wisconsin and Iowa. Since 2007 I have been approved by The Supreme Court of Ohio to teach auction-related continuing legal education for attorneys.

In 2009, I began this blog (mikebrandlyauctioneer.wordpress.com) focused on auction law and customary practice. Not only were we (and still are) conducting a large weekly consignment auction, a twice-monthly car auction, real estate auctions and various on-site and charity auctions, but I was continually researching and writing about the auction industry.

Within a few months, three significant things happened:

  • I was hired to conduct auctions all over the United States. One week in Los Angeles, another in Chicago, then Denver, then Miami, then Boston — 18 cities thus far in nearly as many states.
  • The National Auctioneers Association asked me to teach at the Certified Auctioneer Institute held at Indiana University in Bloomington, Indiana.
  • I began receiving inquiries from attorneys all across the United States asking for assistance in auction/auctioneer related litigation.

While there are a few attorneys (J. Stephen Proffitt III and Kurt R. Bachman, for example) who are also auctioneers and consult on auction cases, these attorneys calling me indicated they were more interested in a full-time auctioneer who could guide them on auction law and customary practice — rather than another attorney who could talk to them about auctioneering.

The segment of legal work in the United States that involves auctions and auctioneers is relatively small. The Supreme Court of the United States has only ruled on three such cases since 1850.

Yet, in the years 2010 – 2013, I have consulted on 21 such cases in 13 different states. These issues have involved auctioneers suing clients and/or customers, clients and/or customers suing auctioneers and regulatory matters where a state or federal agency or an attorney general’s office is investigating an auctioneer.

Some wonder why I would potentially testify against or otherwise help someone suing a fellow auctioneer, while others wonder why I would defend an auctioneer who they feel has harmed them financially and/or emotionally. Really not much different than when I was asked why I opened an auction school. It seems to me that as an auctioneer, I should do all I can to help other auctioneers act legally and ethically, and improve the auction industry overall.

In most of these cases, I have been able to help my attorney client (in the others, I’ve advised the evidence was weighted to the other side.) I’ve viewed auction video, read affidavits and depositions, analyzed auction marketing materials and contracts, been deposed, written opinion reports and testified in court.

Basically, the general questions I’m asked in these cases seem to fall into one of three categories:

    1. What statute, regulation or case law is applicable in this case?
    2. Did the auctioneer act outside of applicable law or customary practice?
    3. Was the auction seller’s (or buyer’s) expectations reasonable?

I’m pleased to report that in more than half of these cases, the auctioneers acted within applicable law and their actions were usual and customary for the industry. Unfortunately, in the balance of these cases, laws were disregarded and actions were quite uncustomary.

How are we compensated? Generally, it’s been a retainer of some sort to start. Then, our hourly rate plus expenses is charged, reflected in a monthly accounting. Expenses typically include, but are not limited to, travel, hotel, meals and ground transportation.

What is the outlook for such work? It appears that there is more and more auction litigation due to an increased public awareness of auctions and a recognition that certain laws and rules apply. Further, as litigation generally is on the rise, it’s no surprise there have been an increased number of lawsuits regarding the auction industry in the 21st century.

Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Auctions and Goodwill Columbus Car Auction. His Facebook page is: www.facebook.com/mbauctioneer. He serves as Adjunct Faculty at Columbus State Community College and is Executive Director of The Ohio Auction School.