In the case, United States of America v. Barry D. Dyer, Mackie E. Shelton 1:21-CR-00016-GNS, these two defendants were accused of violating the Sherman Antitrust Act. I’m quite familiar with the Sherman Antitrust Act and have cited it many times on this platform.
I was contacted by their attorneys seeking my help. I told them their case was difficult to defend as they described it to me. Yet, they asked if I would assist them by writing about bid-calling contacts.
Knowing any counterargument would be an extraordinarily heavy lift, one of the only defenses these attorneys could plausibly suggest would be citing my prior writing that bid calling creates contracts, and that contracts are — generally — assignable.
So, with that premise, could these attorneys argue that Barry D. Dyer and Mackie E. Shelton simply assigned (sold) their high bid to another party? That was their [possibly only] strategy, but ultimately the court rejected those arguments.
You see, I did not argue that these defendants didn’t violate the Sherman Antitrust Act, nor did I propose any other thoughts than what the attorneys asked me to comment about; specifically:
Auctioneer bid calling (live/simulcast/online only, no matter) creates contracts between the seller/owner and the bidder(s.) These contracts contain contingencies of a higher bid, bidder retraction, and seller withdraw if the auction is “with reserve.”
Contracts can be assigned or sold unless the contract itself specifically prohibits such. As a result, a high bidder can generally assign or sell his contract to someone else. In fact, it is not uncommon in real property transactions for the high bidder to assign his equity before or even at the closing.
However, if you disagree with these attorneys’ strategy, maybe tell them how you would have better defended these two auctioneers and brokers? Given the maximum fine (total) was $2,000,000 and 10 years in prison for each, it would appear 6 months of weekend jail and a $250,000 fine is a bit better?
On the other hand, if you hold that bid calling doesn’t create contracts and/or that bidder/buyer contracts cannot generally be assigned, you can contact me as I hold bid calling does create contracts and those contracts are generally assignable:
Of course, a bidder assigning his high bid to another registered bidder given the other bidder has agreed to the same terms and conditions (equal footing) seems reasonable. If bidders are registered arbitrarily, it doesn’t necessarily make sense, nor has it ever made sense they’re not on equal footing.
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.
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