Posted By:
warshawlawCivil fraud is one of my main areas of practice.
Normally, an auctioneer has disclaimers in its rules. MHCC has some:
"While we as a firm perform due diligence in order to maintain the integrity of our auctions, we encourage bidders to use every resource available to them to draw their own conclusions. As a firm we will make every effort to help in the process. Because of our efforts to ensure the authenticity of the items within the catalog as well as the opportunity we offer bidders to confirm our findings as well as that of our experts and third party authentication, it is our policy that all sales will be considered final. "
"USER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT USER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS" AND & "AS AVAILABLE" BASIS. THIS AUCTION SITE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND"
Oddly, they don't have a limitation on returns of non-graded items, Their returns poliy is: "Returns - Returns of graded cards are not allowed. We will make every effort by the above means to describe as accurately as possible any graded card in the auction for you. The emphasis, therefore, is on the bidder to ensure that the lots are satisfactory and are not returned." This is a lousy clause. It is a negative pregnant; by covering only graded cards, it implies ungraded items are open for returns.
In my state, the "as-is" language, claims that sales are final, and the disclaimer of warranties [not quoted here] would not trump all misrepresentation claims and the hole left in the returns policy would give a plaintiff a shot at rescission. The issue would center around (1) what did they really do as due diligence to let them say the card was unique, (2) did they really flat out say it was unique or did they say something else that could be construed as a non-actionable opinion.