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Do we as auctioneers have to treat all bidders to the same terms and conditions — in other words, equal footing — and are those terms and conditions binding alike upon the bidders and the auctioneer/seller? It sure would seem so, or at minimum, this would be a good idea.

In 1925 The Supreme Court of the United States ruled in Erie Cole & Coke Corporation v. U.S. 266 U.S. 518 (1925) held the terms and conditions of the sale as set forth in the advertisement were binding alike upon the United States and the bidders. Yet, would that mean all the terms (whatever they are) must be the same for all bidders? It’s persuasive.

In 1996 The Court of Special Appeals of Maryland in Pyles v. Goller, 109 Md. App. 71, 86 (Md. Ct. Spec. App. 1996) held a public announcement requirement helps ensure that all bidders “stand on equal footing …” Yet, this is “help ensure” and not required? Does this mean all the terms (whatever they are) must be the same for all bidders? It’s persuasive.

In 2015, The Superior Court of the State of California for the County of Orange in Village at Redlands Group LP v. Auction.com Inc., Case No.: 30-2015-00777483-CU-FR-CJC held that bidders could be held to disparate terms. Does this mean all the terms (whatever they are) must be the same for all bidders?

This 2015 case is memorable for two reasons. One, I was the expert witness hired and argued that all bidders must be held to the terms and conditions. Secondly, the news of this jury verdict raced through the auction community because it substantiated the view of those holding bidding as a privilege, and sellers can register bidders capriciously and arbitrarily.

In 2020, The Supreme Court of Appeals of West Virginia in Alex Lyon & Son, Sales Managers and Auctioneers, Inc. v. Leach, 844 S.E.2d 120 (W.Va. 2020) that all bidders must conform to the advertised terms and be on equal footing. Yet, this decision was based partially on the prior cases above, so does this rightly mean all the terms (whatever they are) must be the same for all bidders? Yes.

This 2020 case is memorable for two reasons. One, I was the expert witness hired and argued that all bidders must be held to the terms and conditions. Secondly, the news of this ruling is becoming known through the auction community because I and Kurt Bachman wrote about it, (and I have talked about it) and it substantiated my view of bidding as a right, and that all bidders must satisfy the registration requirements.

The most notable case of these above seems to be the 2020 case Alex Lyon & Son, Sales Managers and Auctioneers, Inc. v. Leach, 844 S.E.2d 120 (W.Va. 2020 with all this precedent, and only the 2015 jury trial countering it. Yet, as you review all four of these notable cases, where’s the case where auctioneers treated all bidders to the same terms? It’s not there.

As we’ve indicated, we’ve spoken to auctioneers at state and national conventions and seminars all across the United States about reducing risk in your auction business, and one such easy rule to remember (particularly when selling high-dollar items) is to set your registration requirements and then don’t vary or make exceptions thereafter.

The question really is, is the one young woman in this picture above whispering to the other (gossiping) that a certain action will win in court, or is she whispering how to stay out of court? Maybe she’s whispering something else, but easily staying out of court is certainly best: https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/.

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, Brandly Real Estate & Auction, 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 has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.