My friend Mike Hanley, Auctioneer wrote an inciteful analysis regarding the Alex Lyon & Son, Sales Managers and Auctioneers, Inc. v. Leach, 844 S.E.2d 120 (W.Va. 2020) case (and all legal cases in general) here: https://mikehanleylawgroup.com/posts/f/the-wrong-side-of-the-“v”.
If you are an auctioneer, lawyer, or law student, this is a must-read in respect to taking careful consideration to not only the legal issues, but the moral, economic, social, and political factors related to the subject and client at hand.
We previously wrote about this topic, and it appears to us that there are other factors in addition to the law, statute, and/or rule alone, which when ignored result in less than optimal decisions: https://mikebrandlyauctioneer.wordpress.com/2021/07/29/auctioneers-the-law-says-and/.
Further, Mike agrees with me that keeping away from the wrong side of the “V” is a prudent practice. In fact, maybe staying away from either side of the “V” is even better? Nonetheless, Mike notes in his writing that attorneys should tread carefully when deciding to be a legal “test case.”
Court cases cost money — they are stressful, time-consuming, and largely (not completely) a result of bad behavior. How does an auctioneer decide how to behave to avoid all this? We’ve offered to look at what people are complaining about, and keep clear from those things.
Bidders complain about other bidders being held to differing arbitrary terms. Bidders don’t like auctioneers saying “Sold!” to them and then reopening the bid. Bidders don’t like to be held to terms and conditions in print they can’t read or understand. Bidders don’t like unconscionable modifications to the UCC § 2-328.
How do we know that? Because there have been — and continue to be — lawsuits regarding these exact issues. Further, our phone rings and we hear about these same issues. So, do you want to avoid a lawsuit? Or, do you want to be a party to the next lawsuit? Want to steer clear of being the next test case? Mike Hanley and I would suggest you likely do.
Furthermore, there are cases where sellers complain about property selling far below what the auctioneer promised or inferred. Would it be best to not overpromise and underdeliver? Too, of course, auctioneers are bound to be obedient, loyal, disclose material information, keep confidential information as such, maintain an accounting, and act in accordance with reasonable care.
We wrote about agency duties for auctioneers many years ago on this platform: https://mikebrandlyauctioneer.wordpress.com/2009/11/18/what-do-auctioneers-owe-their-clients/. It’s not likely any of these duties are going to change despite any suggestion otherwise.
For those interested, the above photograph regards the famous “test” case Plessy v. Ferguson, 163 U.S. 537 (1896) and this is a picture of Homer Adolph Plessy (1/8 Black?) (just recently posthumously pardoned) who agreed to participate in a test to challenge the Louisiana Separate Car Act. It’s doubtful any of our solely-auction issues rise to the importance of this case or any like it.
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.
Comments