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#101
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Posted By: barrysloate
Peter- my auction rules are all sales are final; but if I grossly misrepresent something I'm going to have to bend my rules. I have no choice. |
#102
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Posted By: Joe D.
Please answer this question: |
#103
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Posted By: peter chao
Joe D., |
#104
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Posted By: barrysloate
If Ryan doesn't have enough proof here I am going to start buying Vg cards and offer them out as gem mint. Hey, I'll just tell the judge they looked gem mint to me. |
#105
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Posted By: Bob Pomilla
The difference between the actual item and the way it is presented in the catalogue, is "simply negligence"??? |
#106
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Posted By: Jeff Lichtman
Peter, your responses are so consistently and mind-numbingly wrong that I acutally question whether or not you are even a licensed attorney. |
#107
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Posted By: barrysloate
Photoshopping a photograph is not negligence. |
#108
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Posted By: Zinn
Peter Chao, Attorney at Law, Chao & Lopez, 807 Montgomery Street, San Francisco, CA 94133 |
#109
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Posted By: Jeff Lichtman
Yes, Barry, but unlike Peter you slept in a Holiday Inn Express last night. |
#110
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Posted By: barrysloate
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#111
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Posted By: Solomon Cramer
Barry, |
#112
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Posted By: Jeff Lichtman
Solomon's points are well-taken. |
#113
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Posted By: Dan Bretta
I'm no lawyer and maybe that's why what Peter Chao is saying seems logical to me...even though it seems clear to all of us that SCP was deceptive here I certainly wouldn't trust a jury or judge to rule in Ryan's favor in large part because SCP described the damage in their description. If Ryan is going to pursue this legally I think he needs to be damn sure that he's going to win the case. What may seem like a "slam dunk" here on the board may not be what happens in the real world. I'd just hate to see Ryan lay out a lot of money for a lawyer and travel and have him lose the case. |
#114
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Posted By: Tom Nieves
I've been unable to locate SCP's Terms for this auction, but I suspect that you will likely find something in there similar to this excerpt from Memory Lane's Auction Terms: |
#115
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Posted By: Corey R. Shanus
On this one I happen to agree with Peter C that the claim would be for negligence, not for fraud. In my experience catalog cropping of photographic images is VERY common, perhaps to the point of being the rule, not the exception. Yes, what was cropped happened to be the worst part of the creasing, but aside from that it did not cover any other salient features of the image. While I am aware what I just wrote is a huge "aside from that", but from the perspective of the Sotheby's catalog guy preparing thousands of images for catalog depiction, I would attribute the cropping more to an innocent mistake, not a conscious intent to defraud. This is truly nickel and dime stuff to Sotheby's/SCP. The innocent oversight explanation makes much more sense to me than either company risking trashing its reputation over a very minor item. In regard to the change in photo tones, on that one I did make a point of looking up the image in the Sotheby's catalog to see how it was depicted. The difference in photo tones in my view is well within the range of customary catalog transformation. |
#116
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Posted By: Jeff Lichtman
Corey, first off, it was quite convenient that Sothebys' picture cropping left out the most significant damage in the picture. As Ryan showed, the real picture and the one in the catalogue are significantly different -- and not just in the cropped areas. Tears do not appear in the catalogue pic that appear in the real picture. That Sotheby's may claim that 'this is the way we do things' will hardly sway anyone. It may be the way they do things but it doesn't make it right. A jury (not that it would ever get that far) of regular people would be appalled, in my opinion, of the differences in the two pictures. |
#117
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Posted By: PAS
Is negligence not actionable in California? In particular, negligent misrepresentation? |
#118
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Posted By: Joe D.
look at how SCP displayed the product |
#119
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Posted By: peter chao
Sure it is. But such an action would not be commercially feasible because of the limited damages you would receive. To make this case worthwhile, Ryan would have to show fraud. |
#120
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Posted By: barrysloate
I don't think that the photo enhancement that appears in the catalog is just the typical kind of cropping that is done as a rule, and not an exception, to paraphrase Corey. As Joe and I were discussing, a printer and photographer have an extra obligation when preparing an auction catalog that features collectibles. |
#121
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Posted By: PAS
Peter, you said, "Also, the fact remains that you need to show intent to decieve by preponderance of the evidence. This is higher than the "more likely than not" standard of torts. I just don't think Ryan can meet the standard of proof." |
#122
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Posted By: Jeff Lichtman
Peter S, good point. While I'm just a country criminal defense lawyer, the standards are: preponderance of evidence (51%), clear and convincing (more) and beyond a reasonable doubt (most). |
#123
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Posted By: peter chao
Your right, Peter S., I don't do this type of litigation so I did not state standard correctly. Thanks for correcting me. |
#124
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Posted By: PAS
Pete C., no problem, just wanted to set it straight in case anyone is paying attention to us lawyers. |
#125
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Posted By: Steve Murray
"just a country criminal defense lawyer" |
#126
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Posted By: Corey R. Shanus
On this one we'll just agree to disagree. |
#127
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Posted By: Jeff Lichtman
Corey -- how can you explain the tears and damage to the picture that are not in the area that was cropped? Isn't that the difference between purported negligence and intentional action? |
#128
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Posted By: barrysloate
I don't think Sotheby's had a staff meeting and decided to crop Ryan's photo, but I think they might have a policy that instructs their catalog designer to enhance pictures somewhat, particularly those that don't look so great to begin with. Perhaps in this case they just went too far. The nature of the cropping is what concerns me, not that it just happened to be enhanced. |
#129
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Posted By: Jeff Lichtman
I think the problem here is that some people presume that just because this sort of (somewhat) subtle altering of pictures done in an attempt to make items look better (which serves to misrepresent the actual item in a material way) has been done regularly in the industry means that the practice will be forever given a pass. It won't be. For an example, the price fixing alleged by the NYS Attorney General against the insurance industry (AIG, Marsh, etc.) simply exposed a practice that had been allegedly going on for years. Eventually criminal charges were brought against the brokers alleged to be involved in this behavior and the firms fined zillions of dollars. There is no way, at least to me, you can pass off the Sotheby's picture in the catalogue compared to what it truly looked like as just a modest improvement. There are material differences designed, solely, to inflate the bidding. This is fraud any way you look at it. |
#130
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Posted By: barrysloate
Corey- I'm leaning towards Jeff on this one. There is just too much of a discrepancy between the way it is and the way it is depicted. It's not subtle, but more of a sledgehammer. |
#131
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Posted By: Joe D.
"But I'm just having a hard time believing that this was a deliberate attempt to defraud." |
#132
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Posted By: E, Daniel
I think this is purely an attempt to force one over a buyer, largely because of the belief the item being sold can be argued to be difficult to photograph and thus is open to interpration visually, and further that the hobby doesn't speak with one voice. |
#133
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Posted By: Corey R. Shanus
Aside from the tears, there is nothing in the cropped area except grass. Auction houses typically have a policy of depicting the salient features of a photograph and cropping out the portion deemed to be of insignificant interest to perspective bidders. This policy both allows the salient features to be shown in greater detail as well as saves valuable catalog space. The act of cropping is an intentional act. I agree with that. But going back to Ryan's photo, as long as Sotheby's can make the case the cropping was done as part of standard procedure without thought of hiding salient features and misleading prospective bidders, I don't believe it qualifies as fraud. And I do believe the cropper was focusing only on the grass, not the creasing (which appears elsewhere in the image and is mentioned in the catalog description and so therefore was not deemed material enough to keep in). Was the cropper stupid/careless? Yes. Hence the action for negligence. Also, Ryan makes mention that he received the item matted and framed. That leads strong credence to the notion that all that was cropped out was the frame, which certainly in the eyes of Sotheby's was not a salient feature. And why you might ask should they not mention the item was framed so as to give a prospective bidder further notice that the depiction might be omitting important details? Answer--arguably they should have, which will be a further part of the negligence action. |
#134
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Posted By: Jeff Lichtman
Corey--look at the tear below the word "May"; that is more than just a crop job. |
#135
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Posted By: Aaron Seefeldt
Several years ago I sold a couple of big ticket cards thru SCP: |
#136
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Posted By: Ryan Christoff
Corey, |
#137
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Posted By: Corey R. Shanus
I need first a bit of clarification as to what you are saying. Was the item framed by SCP/Sotheby's or the consignor? |
#138
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Posted By: Ryan Christoff
Corey, |
#139
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Posted By: barrysloate
Aaron- since I originally sold that Lindstrom card, I am curious- what happened when you resold it that turned you off to the company? I know it was a down market at the time but that wasn't their fault. |
#140
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Posted By: leon
I probably have more of an issue with the creases/tears that are evident in person, and weren't in the catalog picture, than another 1/2 inch or inch tear, to a tear that is already there, and doesn't disturb anything material in the photo (that I can tell)....I am not sure it's uncommon to crop out through framing some inconsequential problems (ya'll know better than me) .....Though as a purist I would rather know exactly what I am buying ... |
#141
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Posted By: Aaron Seefeldt
Barry, |
#142
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Posted By: Joe D.
Corey, |
#143
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Posted By: Jeff Lichtman
Joe -- exactly. That doctored picture is an attempt to deceive the bidder. |
#144
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Posted By: JimB
I am not sure it is a doctored image so much as when the picture is pressed flat, the tear is less apparent and offensive than when it is not flat. I am not taking sides on this, just playing the devil's advocate because there is often a pack of wolves tendancy on this board. As I stated before, I like Ryan and I hope this all concludes in a way that he is happy with. |
#145
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Posted By: Corey R. Shanus
I believe who framed the image has a lot to do with it. My experience is that auction houses often (maybe even usually) do not take items out of frames when photographing for catalogs, and that statement applies to some of the most respected auctions houses in our hobby. If what happened here is that Sotheby's received the item framed from the consignor, photographed it as is and then cropped out the frame/matting, I simply do not see the fraud. Also, I raise the issue whether the act of photographing a photograph under glass (at least under the commercial standards by which auction houses do their photographing) could lessen the appearance of the creasing. Also, when I look at the image Sotheby's provided (and if you go onto their website to look at the image, they provide a zoom-in feature that allows close inspection of any desired specific area of the image), I CAN see the imperfections, though not as well as in Ryan's out-of-the frame images. So I don't believe photoshop manipulation was done. |
#146
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Posted By: Ryan Christoff
Corey, |
#147
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Posted By: barrysloate
We can continue speculating on how Ryan has gotten to where he is now, but one unassailable fact is that the picture in the catalog does not accurately match the object, and that it looks cleaner and reveals less faults in the catalog. How and why that happened is still the point of debate. |
#148
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Posted By: Corey R. Shanus
To be crystal clear on this point, I do NOT believe that if an auction house has done nothing illegal, then it has done nothing wrong (ethically). I do not believe I have said anything in my previous posts inconsistent with that statement. In fact from my previous posts on other threads, I would have thought it was clear how I feel about auction ethics. I have been a vocal proponent of the view that the failure of an auction house to disclose prior grading history constitutes fraud, and the failure to disclose that a statistically significant percentage of graded cards are altered is ethically wrong and very well might constitute fraud. I also have characterized the practice of auction houses to place house bids on behalf of consignors to be "legalized fraud" (i.e., it might be permitted by law but it is still reprehensible and done with intent to mislead). |
#149
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Posted By: Ryan Christoff
Corey, |
#150
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Posted By: Chad
There is no way you can make that middle tear disappear by pressing the picture flat, etc. Either the scan was altered or the picture was damaged after the scanning somehow. Either way, SCP screwed the pooch here. I know nobody likes a mob, but it defies explanation to think SCP was up front regarding the condition of this item. I don't bid in their auctions now, but I finally have a job where the potential exists for me to bid in the future, but I don't see now why I would. Baseball cards aren't worth more than my sense of right and wrong. |
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