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  • Writer's pictureMike Brandly, Auctioneer

Auctioneers: win or lose, you lose

It appears to some people that if I list a dozen lawsuit citations, all pointing out that courts around the United States say that auctioneers can hold buyers to terms and conditions even if they’ve not heard them nor understand them, that this is reason to have terms and conditions buyers don’t hear nor understand.

It appears to some people that if I list a dozen lawsuit citations, all pointing out that courts around the United States say that auctioneers can sell “as is” with no opportunity for inspection, that this is reason to sell “as is” with no opportunity for inspection at your auction.

It appears to some people that if I list a dozen lawsuit citations, all pointing out that courts around the United States say that auctioneers can treat bidders to capricious and arbitrary registration requirements, that this is reason to have capricious and arbitrary registration requirements.

However, I have another question for you … do you notice that if you had understandable terms and conditions, provided pre-auction inspection, and had consistent and fair registration requirements, that would be 36 fewer lawsuits to worry about? It’s not the result of the lawsuit, but the fact someone (36 people) felt harmed enough to file a lawsuit.

I keep seeing this argument:

You can reopen the bid whenever you want as this has been supported by a dozen courts around the United States.

And I keep replying with this argument:

Given a dozen people have sued over reopening the bid, it’s probably a good idea to say, “Sold!” and mean it.

I’m going to repeat my point I noted above: It’s not the result of the lawsuit, but the fact someone (12 people in this example) felt harmed enough to file a lawsuit.

It’s easy when case law shows a certain act is unenforceable – certainly avoid that. But when case law shows wins for these defendants, that’s no reason to paint the town red, and rather it’s time to rethink your strategy.

Auctioneers should be avoiding unnecessary liability, right? Not doing things that upset people enough to initiate litigation, right? Or is the message, “Go ahead and do this, and if it upsets someone, there’s evidence we can win in court?”

I titled this analysis, “Win or lose, you lose” to make a couple of points:

  1. Perception is far more important than reality. https://mikebrandlyauctioneer.wordpress.com/2017/03/15/every-auction-lawsuit-perception-vs-reality/.

  2. Losing in court is the worst, winning in court is better, but staying out of court is best. https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/.

Yes, I’m going to keep encouraging good behavior but if your “coach” is giving you different (bad) advice, so be it. I’ll only add: “‘Winners Never Quit’ … Yes they do. They quit doing stupid stuff. — Dave Ramsey”

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.

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