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I read it, and then I read it again and yes, the claim is “Auctioneer has the right to do whatever the [heck] she or he wants to. Auctioneer[‘s] decision is final, period.” Far more concerning than the claim (joking or not) is there was no push-back, no counter, no correction, no “well, not really.”

This is the current environment. Auctioneers are being told (actually and constructively) they are free to do anything they want, and it doesn’t matter what a court says, the law says, any other attorneys say … put it in “the terms and conditions” or “contract” and it’s supreme law?

Let’s see … the government says you have to close down due to a pandemic? A state says you have to secure a license to operate there? Written contracts are required? A court says certain disclaimers have to be conspicuous? Auctioneers cannot misrepresent property? You have to provide clear title unless otherwise noted? Nope — your terms and conditions say otherwise.

I don’t know what planet you live on, but most auctioneers live on earth. Of those auctioneers who operate in the United States, there is one principle maybe you haven’t noted: Nobody is above the law? Incidentally, the Fourteenth Amendment says something about the “equal protection of the laws.” Or maybe auctioneers are not subject to this concept?

President Nixon was quoted “Well, when the President does it, that means that it is not illegal.” So maybe auctioneers now have “presidential powers?” Even if you think you do, you might remember how that worked out [didn’t work out] for our 37th president of the United States.

To hold a business philosophy that you can do “anything” and your decision cannot be countered by anyone else is anomalous. Further, to even suggest — by expression or conspicuous omission — that this is true — is unhinged and quite frankly, dangerous.

As we’ve written (and a vast majority of those who study these issues believe,) the law and related issues do matter https://mikebrandlyauctioneer.wordpress.com/2021/07/29/auctioneers-the-law-says-and/. Arguing with a judge, state regulatory body, the federal government, and the like claiming they have no authority over you is a dead-end street.

We wrote some time ago about court cases and one [easy] (apparently not) important lesson. You’ll notice (or not) a pattern we noted in this treatise: https://mikebrandlyauctioneer.wordpress.com/2021/06/10/court-cases-and-one-important-lesson/.

  • There have been at least four material cases (litigation) involving reopening the bid after, “Sold!” (1930, 1972, 1986, 2009) but are there any cases where the complaint concerns not reopening the bid?
  • There have been at least eight material cases (litigation) involving bidders not understanding the terms and conditions (1952, 1976, 1983, 1991, 2001, 2005, 2011, 2013) but are there any cases where the complaint was about understanding the terms and conditions?
  • There continue to be lawsuits all across the United States as a result of disregarding the 254 words of the UCC § 2-328 but when has a lawsuit been initiated because an auctioneer followed the UCC § 2-328?
  • As we’ve noted, there have been two rather substantial cases involving inconsistent (capricious) bidder registration policies (2015, 2020) but are there any cases where the complaint was the registration policy was consistent?

I’m suggesting you not reopen the bid, but you’re being told to reopen it? I’m suggesting you have understandable terms and conditions, but you’re being told it doesn’t matter? I’m suggesting to follow the textual nature of the UCC § 2-328 but you’re being told to modify it? I’m suggesting you set firm registration requirements but you’re being told to be arbitrary and capricious?

My recommendation — especially when selling materially valuable assets — is for you and your client to avoid risk and litigation. In fact, it is an egregious violation of agency duties to clearly and purposely put sellers or consignees into increased potential jeopardy. What’s your goal if your practice is counter to the above bullet points?

Let me guess … the seller benefits of all this bad behavior far exceeds any risk? I’m not convinced as I’ve sat in dozens of courtrooms all over the United States and have heard dozens of auctioneers tell me the exact opposite — that this behavior is the reason they are in court … so any differing advice would be indicating what?

Relatedly, how does $100,000 in legal bills sound? $500,000? $1,700,000? $3,250,000? Over $7,000,000? As the value of the subject property increases, both the chance of litigation and commensurate legal expenses also rise. Many of these cases last not only months but several years. How much benefit would there have to be to pay for this potential cost in money and time?

Maybe an easier way to remember? “Just because you can, doesn’t mean you should” and “Just because you don’t have to, doesn’t mean you shouldn’t.” You see, you are better off to consider your business is not in the “Twilight Zone” and it actually matters to your client — and your own business — how you behave.

Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.