By David L. Ganz, Numismatic News
October 23, 2008
Online Internet auction firm eBay, the American Numismatic Association, the Professional Numismatists Guild, and the ANA president's coin firm have been hit with a lawsuit in federal court alleging anti-competitive conduct.
There are four plaintiffs: Universal Grading Service of New Jersey; John Callandrello, a UGS shareholder; Joseph Komito, a New Jersey coin dealer; and Vadim Kirichenko, a New York coin dealer.
They claim damages in excess of $75,000, exclusive of costs, interest and attorney's fees and permanent injunctive relief.
Basis for the claim is an allegation of conduct "constituting violation of antitrust policies, as well as violation of anticompetitive conduct.
There is also a claim for "civil conspiracy and trade libel" pursuant to New York common law. Under the rules of defamation, truth is an affirmative defense to trade libel, if the action complained of actually took place.
The summons and complaint was filed in late August in the United States District Court for the Eastern District of New York, headquartered in Brooklyn, where the Hon. Charles Sifton presides. An initial conference has been scheduled for Jan. 19, 2009, at 10:30 a.m. before the Judge Robert M. Levy.
Plaintiffs claim a "conspiracy between [Barry Suppler & CO., LLC], ANA, PNG and eBay to obstruct the ability of the smaller coin grading services to participate in the coin marketplace on eBay."
The basis of the claim: In 2001, eBay "formed a group that became known as the 'Internet rules committee' made up of coin industry insiders, including Barry Stuppler, in his capacity as then ANA governor and chairman of the ANA Consumer Protection Committee (the precursor to the "Coins Community Watch Group"), Doug Winter, a PNG dealer, and R. Steven Ivy," of Heritage.
Through the effort of this group and others, plaintiffs charge, PNG, in conjunction with the Industry Council for Tangible Assets ("ICTA") and spearheaded by Stuppler, commissioned a survey of rare coin authentication and grading services, which it is claimed gave rise to false and damaging results because of insufficient data.
"Small grading companies like UGS were never referenced in 2006 Grading Service Survey," it is claimed. Thus, coupled with an eBay policy permitting "only coins that have been graded by five grading services (NGC, NCS, PCGS, ICG and ANACS, ) to be listed for sale on eBay as "certified" coins," they claim these actions are anti-competitive and illegal.
The policies, plaintiffs hope to prove, are "destroying the competitive free market by prohibiting consumers and dealers from purchasing or dealing in certified coins graded from any coin grading service except for the ones listed in eBay's policy."
Attorneys for the companies that claim to be besmirched brought it as a class action suit on behalf of themselves and all others similarly situated who comprise the ... "class." That includes "all companies and individuals who provide coin grading services on the market for coin auctions to the public at large and who have not been certified by eBay as 'the authorized grading company" pursuant to eBay's Counterfeit Currency and Stamps policy and who are interested in pursuing this lawsuit.' The class period is from January 2004 to the present.
It is also claimed that "eBay's policy enacted on Sept. 17, 2007 ... is per se unlawful because it limits the flow of goods in commerce."
There will be procedural wangling as to whether the ANA has a sufficient New York presence to be sued here. Presumably, as a national organization which held conventions in New York City in 1997, 1976, 1939 and earlier; had officers who resided or were present and conducted official ANA business in New York over extended periods of time, that may be hard to defeat.
PNG procedurally faces a better set of facts, as does Suppler. EBay will be interesting to watch since their presence is everywhere there is the Internet, but the law is more nuanced. ICTA, though named as a part of all this, was not sued.
For now, the case is in a legal hiatus while plaintiffs try an serve the defendants with legal process. Once that's done, there may be requests for summary relief before an answer is even filed, or the case may proceed with a different track which will be interesting to watch as it plays out. The step after that is the 2009 conference.