<< <i><< Newbs are ripped off all the time by these, do you not know what kind of money these telemarketers charge? >>
Filing a garbage lawsuit against a producer of silver rounds won't change the verbiage or tactics of the telemarketers one iota, but it does stain the bullion industry.
You still haven't provided one example of someone being ripped off because of a buyer thinking that he was buying a Silver Eagle and consequently paying a whopping $2.00 more for the 1 oz. of silver. Surely, you must have at least one example. Surely, the judge needed at least one example. Oh, unless it was Minnesota.
I've said my piece. This thread isn't going anywhere. >>
This was the only purpose of the lawsuit.
C. Class counsel’s Petition for Fees and Costs is GRANTED. An award of $110,000 in attorney’s fees and costs to Class counsel DeNittis Osefchen, P.C. is approved and is to be paid in accordance with the terms of the Settlement Agreement.
Collector and Researcher of Liberty Head Nickels. ANA LM-6053
<< <i>Cannot always go by the price a company posts on their website, They added other costs, not only did they charge shipping but they had extra cost for "handling fee / surcharge." >>
Sure. But not relevant as your point was about paying the same price for ASEs vs generic rounds. That doesn't change if uniform rip-off handling fees are added.
And Dan, some excellent points made. I think I'm signing off on this thread...
<< <i>Cannot always go by the price a company posts on their website, They added other costs, not only did they charge shipping but they had extra cost for "handling fee / surcharge." >>
Sure. But not relevant as your point was about paying the same price for ASEs vs generic rounds. That doesn't change if uniform rip-off handling fees are added.
And Dan, some excellent points made. I think I'm signing off on this thread... >>
It is relevant if they are charging a silver eagle price for a silver round, even if they also charge more for the silver eagle.
<< <i>Thinking way back to when I was a "newbie" ...
Paying close to silver "spot" for a round was fine, regardless of whether the thing looked somewhat like a US coin or not. No harm done either way.
The biggest pitfall for a newbie was polished VF-XF genuine coins marketed as "BU" (Brilliant Uncirculated). I personally saw a few friends pay too much for polished coins and then become dejected when they tried to sell or trade them months later. Of course, the reason they bought the coins in the first place was that they were much cheaper than true BU coins. But there was some real damage being done to numismatics and some people were leaving the hobby and not coming back. Education and third-party grading is what alleviated the problem to a great extent, not lawsuits and government intervention. The free market (the innovation of third-party certification) took care of the problem.
In a way, I think this lawsuit might have an effect that is opposite of that which was desired. To legislators in Minnesota (for example), this lawsuit might send a message that reinforces their view that coin dealers can not be trusted and need more regulation. In this business (numismatics), government intervention and regulation is bad. Free-market solutions are vastly superior. >>
One of the problems we had in Minnesota is the industry was not cleaning itself up. Some key folks got ripped off by the telemarketers, and all of the sudden the Attorney General is pushing this new regulation. For some reason they go to the bad guys, and listen to them instead of the good people in the industry. All of the sudden the bad guys in the industry are writing the legislation. What do they do? They put up obstacles to get the good guy out of the business so they can have the whole market to themselves. Keep in mind the silver rounds in my lawsuit are not covered by the coin bullion law, and this is likely not a coincidence.
My lawsuit may be exposing some of the problems in the industry, but it is not creating them.
My own two cents is that if the Hobby Protection Act ever gets to a circuit court, it will be deemed "void for vagueness," a legal term meaning a reasonable person reading the act cannot tell exactly what acts are allowed and what acts are proscribed. At the district court level, many judges just opt to deal with the law before them without considering whether the law even makes any sense. The HPA seems to be in the category where no two people agree exactly what you can and can't do (except for the really easy fact patterns).
So if telemarketers rip people off by selling real US Mint produced Silver Eagles, then no problem. But if the sell a generic silver round for less (but still an inflated price), that is something this lawsuit will prevent?
Not sure anyone call see this lawsuit having any effect on telemarketers (especially since it was not aimed at them).
And if a newbe cannot tell the difference between the rounds and a real silver eagle, hard to believe they will notice a little copy stamp (or even know what it means). The telemarketers can still market them the same way and sell them for the same price.
Collector and Researcher of Liberty Head Nickels. ANA LM-6053
<< <i>My own two cents is that if the Hobby Protection Act ever gets to a circuit court, it will be deemed "void for vagueness," a legal term meaning a reasonable person reading the act cannot tell exactly what acts are allowed and what acts are proscribed. At the district court level, many judges just opt to deal with the law before them without considering whether the law even makes any sense. The HPA seems to be in the category where no two people agree exactly what you can and can't do (except for the really easy fact patterns). >>
Problem is the reason there is confusion on this board is there are a lot of people who have not read it. Their are also a lot of people that think it says what they want them to say instead of what it actually says.
<< <i>It is relevant if they are charging a silver eagle price for a silver round, even if they also charge more for the silver eagle.
read what you wrote because you're chasing your tail. >>
OK, I will spell it out for you. These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion. What is relevant is what they charge relative to the industry as a whole for a particular product.
Besides I am not just talking about the first purchaser being duped, but also talking about subsequent purchasers being duped.
Of course you have already told us that you don't care if people get duped, so why are you even asking these questions anyway.
<< <i>Not sure anyone call see this lawsuit having any effect on telemarketers (especially since it was not aimed at them). >>
oops, I think you missed my other two posts where I linked to the Time magazine and Sharesleuths articles. When you are reading these keep in mind that the defendants in my case were the Highland Mint, the Westminster Mint, Ian Clay, and Michael Kott. The statement you made above is clearly not accurate.
Check out this Time Magazine article from June 24, 2001, Titled "The Seceret life of JB Oxford."
There is some good information on the history of the Highland mint, and Irving Kott in this story from Sharesleuths on February 4, 2014 titled "Trick Play: Memorabilia company peddled Patriots, Seahawks gear with forged player autographs." Ian Clay and the Westminster mint is also listed.
<< <i>Thinking way back to when I was a "newbie" ...
Paying close to silver "spot" for a round was fine, regardless of whether the thing looked somewhat like a US coin or not. No harm done either way.
The biggest pitfall for a newbie was polished VF-XF genuine coins marketed as "BU" (Brilliant Uncirculated). I personally saw a few friends pay too much for polished coins and then become dejected when they tried to sell or trade them months later. Of course, the reason they bought the coins in the first place was that they were much cheaper than true BU coins. But there was some real damage being done to numismatics and some people were leaving the hobby and not coming back. Education and third-party grading is what alleviated the problem to a great extent, not lawsuits and government intervention. The free market (the innovation of third-party certification) took care of the problem.
In a way, I think this lawsuit might have an effect that is opposite of that which was desired. To legislators in Minnesota (for example), this lawsuit might send a message that reinforces their view that coin dealers can not be trusted and need more regulation. In this business (numismatics), government intervention and regulation is bad. Free-market solutions are vastly superior. >>
<< <i>My own two cents is that if the Hobby Protection Act ever gets to a circuit court, it will be deemed "void for vagueness," a legal term meaning a reasonable person reading the act cannot tell exactly what acts are allowed and what acts are proscribed. At the district court level, many judges just opt to deal with the law before them without considering whether the law even makes any sense. The HPA seems to be in the category where no two people agree exactly what you can and can't do (except for the really easy fact patterns). >>
I wouldn't count on it. It is no more vague than 90% of the rest of the United States Code. That is also why the HPA gives the FTC power to promulgate administrative regulations with the full force of law, and the FTC has done so. Most important are its clarifications as to what constitutes an original numismatic item versus an imitation numismatic item. As for those who cannot agree on what is permitted or prohibited, many of those people have an inherent stake in their constrained reading of the statute and relevant administrative regulations when I think a court could plainly and clearly apply the plain meaning of the statute and the administrative regulations. Insofar as the latter is concerned, there are FTC opinions to help guide people and an administrative agency's interpretation of its own rules are given deference by the courts - it is actually referred to as Chevron Deference after the U.S. Supreme Court case that created it.
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!)
<< <i>Some of you may be saying, while they are still getting silver. But I am saying they were duped, and who here faced with the opportunity to buy silver eagles or silver rounds at the same price, would pick the silver rounds? Not many. >>
What was the price spread between the rounds and authentic ASEs at the time of purchase? (I apologize if it is buried in the thread right now). Currently, Westminster sells ASEs for $19.06 and generic walking liberty rounds are $17.05. That greatly reduces the argument of customers being ripped off as customers are not paying ASE prices for generic rounds. They are paying generic round prices for generic rounds. If you had purchased $20K in generic silver rounds and paid ASE+ pricing, there would be some sympathy.
I'm afraid of being ripped of by buying bruised fruit at the grocery store. It looks from the outside like it is good, but on the inside it is bruised. We need a law requiring stores to mark bruised fruit. I'm afraid I might be charmed by a slick salesman and buy a powerboat I don't need or can't afford. We need a law that the boat store needs to account for my financial situation before selling me a boat. I think there is just a fundamental difference in the amount of government "protection" and hand holding that should happen.
I believe you are on the right side of the war, but picked the wrong battle. >>
Cannot always go by the price a company posts on their website, They added other costs, not only did they charge shipping but they had extra cost for "handling fee / surcharge." >>
<GASP> No way! You saying they actually had the unmitigated GALL to charge for "Shipping and Handling"??? Over and Above the piece of the silver bullion??
I am absolutely floored that any "business" would have the nerve to do such a thing!! Anybody who sells on eBay knows, with absolute certainty, that this is a no no!
I decided to change calling the bathroom the John and renamed it the Jim. I feel so much better saying I went to the Jim this morning.
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!) >>
I disagree that the DeMarco case serves as a precedent for any HPA action (more on that below).
<< <i>I am Armen Vartian, an attorney specialized in matters involving rare coins and other collectibles. I received my J.D. in 1981 from Harvard Law School, and am admitted to practice in California, Illinois and New York, in addition to numerous federal circuits and district courts nationwide. My clients include many of the most important stakeholders in the rare coin and collectibles businesses, including Heritage Auctions (VP-General Counsel 1986-90), Professional Coin Grading Service (PCGS)(outside counsel since 1990) and the Professional Numismatists Guild (Legal Counsel since 1992), as well as collectors and investors in rare coins and other collectibles. I have written the “Collectibles and Law” column in the numismatic trade publication Coin World since 1996, and am the author of the book “Legal Guide to Buying and Selling Art and Collectibles” (Bonus Press 1997). I submit these comments in a personal capacity and am not speaking for any of the above entities or anyone else with whom I have had a professional relationship. ... >>
<< <i>... The only other HPA case of note was DeMarco v. National Collector’s Mint, 229 F.R.D. 73 (S.D.N.Y. 2005). This was a class action relating to a coin called “Freedom Tower Silver Dollar”. In October 2004, New York Attorney General Eliot Spitzer had sued National Collector’s Mint, Inc., alleging that NCM engaged in “false advertising and deceptive, fraudulent, and illegal practices” in marketing coins featuring the World Trade Center and said to have been minted with silver found at Ground Zero. Spitzer noted that these coins displayed the motto “In God We Trust” and the denomination “One Dollar”, and were available in sets with genuine 2004 American Eagle coins, “foster[ing] the impression that the former are legal tender.” Although the coins were minted under authority of the Northern Marianas Islands, apparently the reference to the Marianas was subtle (the coin referred to them only along its edges), and allegedly some consumers thought the coins were U.S. coinage because of the motto and the denomination. The New York State Supreme Court ruled that the coins were, in fact, deceptive and ordered NCM to stop selling them, arrange for customer refunds, and pay a civil penalty of approximately $370,000. The case was based entirely on New York State law, and the HPA was not mentioned. Subsequently, a civil class action was filed in New York federal court under the HPA on behalf of customers who purchased Freedom Tower Silver Dollars. The plaintiffs alleged that these coins “purported to be” original numismatic items under the Act because of the motto and denomination, and because they were marketed as being “legal tender”. The court accepted these arguments, stating “[T]he term ‘imitation numismatic item’ includes not only reproductions or counterfeits of existing coins, but also any item that ‘purports to be, but in fact is not, an original numismatic item’. The FTSD falls within the ambit of the statute because it ‘purports to be, but is not, an original numismatic item’. The FTSD purports to be a legally authorized, government-issued silver dollar. However, the Complaint alleges that the FTSD is neither legally authorized nor government-issued, and is certainly not a ‘silver dollar’ which is U.S. legal tender….That makes it an imitation numismatic device. Defendants’ argument that the coin is not a reproduction of a real Government-minted coin reads half the definition of that term out of the statute”. I believe that the New York state court correctly applied New York law, but that the federal court misapplied the HPA. The “Freedom Tower Silver Dollars” were not “imitations” of any conceivable original numismatic item. By definition they were made after September 11, 2001, so there was never any doubt that they were contemporary pieces of the type Congress stated were covered by existing counterfeiting laws and were not covered by the HPA. The Commission in Gold Bullion International, while recognizing that Congress’s use of the word “counterfeit” in the HPA allowed some leeway in regulating coins which resembled actual “original numismatic items”, clearly would not have gone as far as did the DeMarco judge, to find that a coin which itself was original was in fact a copy subject to the HPA. The court’s quoting of the definition of “imitation numismatic item” ignores the fact that this definition was itself qualified by the statute’s definition of “original numismatic item”. It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark. Current Situation Manufacturers and distributors of coins as collectibles are faced with the near-unlimited scope of the DeMarco opinion, which declares, in effect, that anything that looks like it might be a legal tender coin must be marked “COPY”. But other than size and shape, how many other indicia of legal tender coinage need to be present before the HPA applies? This problem is not the result of the statute itself, which in my opinion was clear that the HPA applies only to copies of formerly-circulating coins and medals. It is in the interpretation of the statute, which has seized upon the “counterfeit” and “purports to be” language to distort Congress’s meaning and substitute the HPA for FTC Act Section 5 as an all-purpose consumer protection law. But Section 5 does not provide a private right of action, and the HPA does. Hence the seller of Freedom Tower Silver Dollars facing a private class action while the Commission [FTC], apparently, chose not to act. Clarity is needed, and the Commission should amend the regulations to accomplish this. ... >>
<< <i>The only winners in class action suits are the lawyers. >>
I'll second that motion! >>
Agreed. Most if not all class action lawsuits are a gravy train for attorneys, with little "relief" for the "harmed" class. This case probably has at least the appearance of some merit, but I fail to see how the plaintiff was harmed financially (3 rounds? ) and the rounds may resemble the real thing, but with no denomination, they look different enough to me as the defendants have suggested.
<< <i>These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion.
yes, as a matter of fact it is. >>
Funny how the defense attorney's never brought it up. >>
This was the entire premise to your argument. That people were being charged silver eagle money for these rounds. Now you say they were not being charged the same for these rounds as the were for silver eagles.
So if these telemarketers are over charging for silver eagles, maybe you should sue the US Mint for producing them as well.
Collector and Researcher of Liberty Head Nickels. ANA LM-6053
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!) >>
I disagree that the DeMarco case serves as a precedent for any HPA action (more on that below).
<< <i>I am Armen Vartian, an attorney specialized in matters involving rare coins and other collectibles. I received my J.D. in 1981 from Harvard Law School, and am admitted to practice in California, Illinois and New York, in addition to numerous federal circuits and district courts nationwide. My clients include many of the most important stakeholders in the rare coin and collectibles businesses, including Heritage Auctions (VP-General Counsel 1986-90), Professional Coin Grading Service (PCGS)(outside counsel since 1990) and the Professional Numismatists Guild (Legal Counsel since 1992), as well as collectors and investors in rare coins and other collectibles. I have written the “Collectibles and Law” column in the numismatic trade publication Coin World since 1996, and am the author of the book “Legal Guide to Buying and Selling Art and Collectibles” (Bonus Press 1997). I submit these comments in a personal capacity and am not speaking for any of the above entities or anyone else with whom I have had a professional relationship. ... >>
<< <i>... The only other HPA case of note was DeMarco v. National Collector’s Mint, 229 F.R.D. 73 (S.D.N.Y. 2005). This was a class action relating to a coin called “Freedom Tower Silver Dollar”. In October 2004, New York Attorney General Eliot Spitzer had sued National Collector’s Mint, Inc., alleging that NCM engaged in “false advertising and deceptive, fraudulent, and illegal practices” in marketing coins featuring the World Trade Center and said to have been minted with silver found at Ground Zero. Spitzer noted that these coins displayed the motto “In God We Trust” and the denomination “One Dollar”, and were available in sets with genuine 2004 American Eagle coins, “foster[ing] the impression that the former are legal tender.” Although the coins were minted under authority of the Northern Marianas Islands, apparently the reference to the Marianas was subtle (the coin referred to them only along its edges), and allegedly some consumers thought the coins were U.S. coinage because of the motto and the denomination. The New York State Supreme Court ruled that the coins were, in fact, deceptive and ordered NCM to stop selling them, arrange for customer refunds, and pay a civil penalty of approximately $370,000. The case was based entirely on New York State law, and the HPA was not mentioned. Subsequently, a civil class action was filed in New York federal court under the HPA on behalf of customers who purchased Freedom Tower Silver Dollars. The plaintiffs alleged that these coins “purported to be” original numismatic items under the Act because of the motto and denomination, and because they were marketed as being “legal tender”. The court accepted these arguments, stating “[T]he term ‘imitation numismatic item’ includes not only reproductions or counterfeits of existing coins, but also any item that ‘purports to be, but in fact is not, an original numismatic item’. The FTSD falls within the ambit of the statute because it ‘purports to be, but is not, an original numismatic item’. The FTSD purports to be a legally authorized, government-issued silver dollar. However, the Complaint alleges that the FTSD is neither legally authorized nor government-issued, and is certainly not a ‘silver dollar’ which is U.S. legal tender….That makes it an imitation numismatic device. Defendants’ argument that the coin is not a reproduction of a real Government-minted coin reads half the definition of that term out of the statute”. I believe that the New York state court correctly applied New York law, but that the federal court misapplied the HPA. The “Freedom Tower Silver Dollars” were not “imitations” of any conceivable original numismatic item. By definition they were made after September 11, 2001, so there was never any doubt that they were contemporary pieces of the type Congress stated were covered by existing counterfeiting laws and were not covered by the HPA. The Commission in Gold Bullion International, while recognizing that Congress’s use of the word “counterfeit” in the HPA allowed some leeway in regulating coins which resembled actual “original numismatic items”, clearly would not have gone as far as did the DeMarco judge, to find that a coin which itself was original was in fact a copy subject to the HPA. The court’s quoting of the definition of “imitation numismatic item” ignores the fact that this definition was itself qualified by the statute’s definition of “original numismatic item”. It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark. Current Situation Manufacturers and distributors of coins as collectibles are faced with the near-unlimited scope of the DeMarco opinion, which declares, in effect, that anything that looks like it might be a legal tender coin must be marked “COPY”. But other than size and shape, how many other indicia of legal tender coinage need to be present before the HPA applies? This problem is not the result of the statute itself, which in my opinion was clear that the HPA applies only to copies of formerly-circulating coins and medals. It is in the interpretation of the statute, which has seized upon the “counterfeit” and “purports to be” language to distort Congress’s meaning and substitute the HPA for FTC Act Section 5 as an all-purpose consumer protection law. But Section 5 does not provide a private right of action, and the HPA does. Hence the seller of Freedom Tower Silver Dollars facing a private class action while the Commission [FTC], apparently, chose not to act. Clarity is needed, and the Commission should amend the regulations to accomplish this. ... >>
>>
A few comments on this.
First, keep in mind what this is, it is one person requesting changes to the federal regulations in the hobby protection act. Anyone can submit a comment, and anyone can say what they want. It means absolutely nothing to how the HPA is enforced or interpreted, unless it is adopted in the regulation promulgated by the FTC. It is my understanding that none of the changes he wanted were included in the regulations.
It doesn't matter if Armen Vartian was the defense attorney they hired, the judge in my case, and the judge in the DeMarco case rejected his arguments.
Next he is factually incorrect in at least one area, which makes we wonder if his other "facts" are incorrect as well. Demarco was filed two weeks before Eliot Spitzer filed suit. This would have been easy for him to verify with court filings. Making easily verifiable incorrect statements when you are submitting a comment on a regulation you want changed, is not a good idea.
I also question his claim that congress intended the HPA to only cover copies of older coins. If this is the case why wouldn't they write that into the law. In the law they defined an Original Numismatic Item as anything that is part of coinage or used in exchange, among other things. If they really meant for it to exclude modern issues, they would have put in a date. With the definition past into law any coin authorized by congress would clearly be covered, that is especially true of the Silver Eagle where the authorizing law actually calls it a "Numismatic" item.
Some of the comments made remind me of what a famous politician made a short while back! Namely, "I did not have sex with that woman!"
Some folks will deny reality in the face of illogical thinking to the point that they just look silly and my Daddy cautioned me about arguing with these folks in public.........
I decided to change calling the bathroom the John and renamed it the Jim. I feel so much better saying I went to the Jim this morning.
<< <i>These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion.
yes, as a matter of fact it is. >>
Funny how the defense attorney's never brought it up. >>
This was the entire premise to your argument. That people were being charged silver eagle money for these rounds. Now you say they were not being charged the same for these rounds as the were for silver eagles.
So if these telemarketers are over charging for silver eagles, maybe you should sue the US Mint for producing them as well. >>
No, that was not the premise of my argument, you are taking things out of context. My argument is that there is a difference between the value of a silver eagle and a silver round that looks like a silver eagle. Who paid what for what did not factor in to my main argument. My point is that there is a difference in value, so if someone is being sold a silver round and they are deceived into thinking it is a silver eagle, they have been duped. It really doesn't matter what price is charge, there is deception there. Actually, it doesn't even matter if there is a difference in value since there may be other differences such as liquidity.
In my example I am not saying that deception happened the first time the round is sold. The first few times it trades hands maybe were done with everyone knowing what was done, but down the road that may not be the case. The Hobby Protection Act is really not that intrusive of an act. It is really just a disclosure law that is saying, just mark it copy so people are not deceived in the future.
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!) >>
I disagree that the DeMarco case serves as a precedent for any HPA action (more on that below).
<< <i>I am Armen Vartian, an attorney specialized in matters involving rare coins and other collectibles. I received my J.D. in 1981 from Harvard Law School, and am admitted to practice in California, Illinois and New York, in addition to numerous federal circuits and district courts nationwide. My clients include many of the most important stakeholders in the rare coin and collectibles businesses, including Heritage Auctions (VP-General Counsel 1986-90), Professional Coin Grading Service (PCGS)(outside counsel since 1990) and the Professional Numismatists Guild (Legal Counsel since 1992), as well as collectors and investors in rare coins and other collectibles. I have written the “Collectibles and Law” column in the numismatic trade publication Coin World since 1996, and am the author of the book “Legal Guide to Buying and Selling Art and Collectibles” (Bonus Press 1997). I submit these comments in a personal capacity and am not speaking for any of the above entities or anyone else with whom I have had a professional relationship. ... >>
<< <i>... The only other HPA case of note was DeMarco v. National Collector’s Mint, 229 F.R.D. 73 (S.D.N.Y. 2005). This was a class action relating to a coin called “Freedom Tower Silver Dollar”. In October 2004, New York Attorney General Eliot Spitzer had sued National Collector’s Mint, Inc., alleging that NCM engaged in “false advertising and deceptive, fraudulent, and illegal practices” in marketing coins featuring the World Trade Center and said to have been minted with silver found at Ground Zero. Spitzer noted that these coins displayed the motto “In God We Trust” and the denomination “One Dollar”, and were available in sets with genuine 2004 American Eagle coins, “foster[ing] the impression that the former are legal tender.” Although the coins were minted under authority of the Northern Marianas Islands, apparently the reference to the Marianas was subtle (the coin referred to them only along its edges), and allegedly some consumers thought the coins were U.S. coinage because of the motto and the denomination. The New York State Supreme Court ruled that the coins were, in fact, deceptive and ordered NCM to stop selling them, arrange for customer refunds, and pay a civil penalty of approximately $370,000. The case was based entirely on New York State law, and the HPA was not mentioned. Subsequently, a civil class action was filed in New York federal court under the HPA on behalf of customers who purchased Freedom Tower Silver Dollars. The plaintiffs alleged that these coins “purported to be” original numismatic items under the Act because of the motto and denomination, and because they were marketed as being “legal tender”. The court accepted these arguments, stating “[T]he term ‘imitation numismatic item’ includes not only reproductions or counterfeits of existing coins, but also any item that ‘purports to be, but in fact is not, an original numismatic item’. The FTSD falls within the ambit of the statute because it ‘purports to be, but is not, an original numismatic item’. The FTSD purports to be a legally authorized, government-issued silver dollar. However, the Complaint alleges that the FTSD is neither legally authorized nor government-issued, and is certainly not a ‘silver dollar’ which is U.S. legal tender….That makes it an imitation numismatic device. Defendants’ argument that the coin is not a reproduction of a real Government-minted coin reads half the definition of that term out of the statute”. I believe that the New York state court correctly applied New York law, but that the federal court misapplied the HPA. The “Freedom Tower Silver Dollars” were not “imitations” of any conceivable original numismatic item. By definition they were made after September 11, 2001, so there was never any doubt that they were contemporary pieces of the type Congress stated were covered by existing counterfeiting laws and were not covered by the HPA. The Commission in Gold Bullion International, while recognizing that Congress’s use of the word “counterfeit” in the HPA allowed some leeway in regulating coins which resembled actual “original numismatic items”, clearly would not have gone as far as did the DeMarco judge, to find that a coin which itself was original was in fact a copy subject to the HPA. The court’s quoting of the definition of “imitation numismatic item” ignores the fact that this definition was itself qualified by the statute’s definition of “original numismatic item”. It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark. Current Situation Manufacturers and distributors of coins as collectibles are faced with the near-unlimited scope of the DeMarco opinion, which declares, in effect, that anything that looks like it might be a legal tender coin must be marked “COPY”. But other than size and shape, how many other indicia of legal tender coinage need to be present before the HPA applies? This problem is not the result of the statute itself, which in my opinion was clear that the HPA applies only to copies of formerly-circulating coins and medals. It is in the interpretation of the statute, which has seized upon the “counterfeit” and “purports to be” language to distort Congress’s meaning and substitute the HPA for FTC Act Section 5 as an all-purpose consumer protection law. But Section 5 does not provide a private right of action, and the HPA does. Hence the seller of Freedom Tower Silver Dollars facing a private class action while the Commission [FTC], apparently, chose not to act. Clarity is needed, and the Commission should amend the regulations to accomplish this. ... >>
>>
A few comments on this.
First, keep in mind what this is, it is one person requesting changes to the federal regulations in the hobby protection act. Anyone can submit a comment, and anyone can say what they want. It means absolutely nothing to how the HPA is enforced or interpreted, unless it is adopted in the regulation promulgated by the FTC. It is my understanding that none of the changes he wanted were included in the regulations.
It doesn't matter if Armen Vartian was the defense attorney they hired, the judge in my case, and the judge in the DeMarco case rejected his arguments.
Next he is factually incorrect in at least one area, which makes we wonder if his other "facts" are incorrect as well. Demarco was filed two weeks before Eliot Spitzer filed suit. This would have been easy for him to verify with court filings. Making easily verifiable incorrect statements when you are submitting a comment on a regulation you want changed, is not a good idea.
I also question his claim that congress intended the HPA to only cover copies of older coins. If this is the case why wouldn't they write that into the law. In the law they defined an Original Numismatic Item as anything that is part of coinage or used in exchange, among other things. If they really meant for it to exclude modern issues, they would have put in a date. With the definition past into law any coin authorized by congress would clearly be covered, that is especially true of the Silver Eagle where the authorizing law actually calls it a "Numismatic" item. >>
Varitan is NOT claiming that Congress intended the HPA to only cover copies of older coins. He is claiming that Congress intended the HPA to cover coins and medals which were in existence prior to the production of the supposed replica.
The DeMarco judge was way over their head in this case. While ruling in favor of DeMarco, the judge rightly applied U.S.C. Title 18 and FTC Act Section 5. But the judge was woefully incorrect for attributing the ruling to the HPA.
Varitan's statement says it best: "It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark.".
This is the coin that the DeMarco case was all about. When advertised as a "Government Issue Silver Dollar", it is reasonable to see how it might be considered a fake form of currency, deceptively advertised. But in no way is it a "COPY" of anything else that was ever issued.
So the DeMarco ruling was so far off the mark that I think it could be successfully challenged in future cases such that it would no longer be considered an HPA precedent.
Getting back to the "Action" and it's results, specifically outlined in the Settlement Agreement, with regard to any and all legal precedents it sets, two image from the Settlement:
Draw your own conclusions but leave any HPA discussions out of the conclusion since it's not a part of the settlement of the case.
Settlement of the case basically amounts to the defendants saying, "Here's some money now go away" and the Plaintiffs saying "Sounds Great!". Monies amount to a grand to the lead plaintiff and 110 grand to the attorney's. Additional monies would amount to the postage and handling repaid to anybody that cared to send the Silver Rounds back to Westminster Mint. A provision of the settlement is that the rounds could be replaced with like rounds that have COPY on them or the costs of the silver refunded to the claimant based upon the spot price of silver "on the day the round was received by the Settlement Administrator" (i.e. not the day the Silver round was purchased).
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
I'm also curious if the lead plaintiff has returned his silver rounds?
I decided to change calling the bathroom the John and renamed it the Jim. I feel so much better saying I went to the Jim this morning.
<< <i> I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
>>
Your basis is is still $30 no matter how you slice it. You're out nothing extra if Westminster mint pays shipping both ways.
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!) >>
I disagree that the DeMarco case serves as a precedent for any HPA action (more on that below).
<< <i>I am Armen Vartian, an attorney specialized in matters involving rare coins and other collectibles. I received my J.D. in 1981 from Harvard Law School, and am admitted to practice in California, Illinois and New York, in addition to numerous federal circuits and district courts nationwide. My clients include many of the most important stakeholders in the rare coin and collectibles businesses, including Heritage Auctions (VP-General Counsel 1986-90), Professional Coin Grading Service (PCGS)(outside counsel since 1990) and the Professional Numismatists Guild (Legal Counsel since 1992), as well as collectors and investors in rare coins and other collectibles. I have written the “Collectibles and Law” column in the numismatic trade publication Coin World since 1996, and am the author of the book “Legal Guide to Buying and Selling Art and Collectibles” (Bonus Press 1997). I submit these comments in a personal capacity and am not speaking for any of the above entities or anyone else with whom I have had a professional relationship. ... >>
<< <i>... The only other HPA case of note was DeMarco v. National Collector’s Mint, 229 F.R.D. 73 (S.D.N.Y. 2005). This was a class action relating to a coin called “Freedom Tower Silver Dollar”. In October 2004, New York Attorney General Eliot Spitzer had sued National Collector’s Mint, Inc., alleging that NCM engaged in “false advertising and deceptive, fraudulent, and illegal practices” in marketing coins featuring the World Trade Center and said to have been minted with silver found at Ground Zero. Spitzer noted that these coins displayed the motto “In God We Trust” and the denomination “One Dollar”, and were available in sets with genuine 2004 American Eagle coins, “foster[ing] the impression that the former are legal tender.” Although the coins were minted under authority of the Northern Marianas Islands, apparently the reference to the Marianas was subtle (the coin referred to them only along its edges), and allegedly some consumers thought the coins were U.S. coinage because of the motto and the denomination. The New York State Supreme Court ruled that the coins were, in fact, deceptive and ordered NCM to stop selling them, arrange for customer refunds, and pay a civil penalty of approximately $370,000. The case was based entirely on New York State law, and the HPA was not mentioned. Subsequently, a civil class action was filed in New York federal court under the HPA on behalf of customers who purchased Freedom Tower Silver Dollars. The plaintiffs alleged that these coins “purported to be” original numismatic items under the Act because of the motto and denomination, and because they were marketed as being “legal tender”. The court accepted these arguments, stating “[T]he term ‘imitation numismatic item’ includes not only reproductions or counterfeits of existing coins, but also any item that ‘purports to be, but in fact is not, an original numismatic item’. The FTSD falls within the ambit of the statute because it ‘purports to be, but is not, an original numismatic item’. The FTSD purports to be a legally authorized, government-issued silver dollar. However, the Complaint alleges that the FTSD is neither legally authorized nor government-issued, and is certainly not a ‘silver dollar’ which is U.S. legal tender….That makes it an imitation numismatic device. Defendants’ argument that the coin is not a reproduction of a real Government-minted coin reads half the definition of that term out of the statute”. I believe that the New York state court correctly applied New York law, but that the federal court misapplied the HPA. The “Freedom Tower Silver Dollars” were not “imitations” of any conceivable original numismatic item. By definition they were made after September 11, 2001, so there was never any doubt that they were contemporary pieces of the type Congress stated were covered by existing counterfeiting laws and were not covered by the HPA. The Commission in Gold Bullion International, while recognizing that Congress’s use of the word “counterfeit” in the HPA allowed some leeway in regulating coins which resembled actual “original numismatic items”, clearly would not have gone as far as did the DeMarco judge, to find that a coin which itself was original was in fact a copy subject to the HPA. The court’s quoting of the definition of “imitation numismatic item” ignores the fact that this definition was itself qualified by the statute’s definition of “original numismatic item”. It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark. Current Situation Manufacturers and distributors of coins as collectibles are faced with the near-unlimited scope of the DeMarco opinion, which declares, in effect, that anything that looks like it might be a legal tender coin must be marked “COPY”. But other than size and shape, how many other indicia of legal tender coinage need to be present before the HPA applies? This problem is not the result of the statute itself, which in my opinion was clear that the HPA applies only to copies of formerly-circulating coins and medals. It is in the interpretation of the statute, which has seized upon the “counterfeit” and “purports to be” language to distort Congress’s meaning and substitute the HPA for FTC Act Section 5 as an all-purpose consumer protection law. But Section 5 does not provide a private right of action, and the HPA does. Hence the seller of Freedom Tower Silver Dollars facing a private class action while the Commission [FTC], apparently, chose not to act. Clarity is needed, and the Commission should amend the regulations to accomplish this. ... >>
>>
A few comments on this.
First, keep in mind what this is, it is one person requesting changes to the federal regulations in the hobby protection act. Anyone can submit a comment, and anyone can say what they want. It means absolutely nothing to how the HPA is enforced or interpreted, unless it is adopted in the regulation promulgated by the FTC. It is my understanding that none of the changes he wanted were included in the regulations.
It doesn't matter if Armen Vartian was the defense attorney they hired, the judge in my case, and the judge in the DeMarco case rejected his arguments.
Next he is factually incorrect in at least one area, which makes we wonder if his other "facts" are incorrect as well. Demarco was filed two weeks before Eliot Spitzer filed suit. This would have been easy for him to verify with court filings. Making easily verifiable incorrect statements when you are submitting a comment on a regulation you want changed, is not a good idea.
I also question his claim that congress intended the HPA to only cover copies of older coins. If this is the case why wouldn't they write that into the law. In the law they defined an Original Numismatic Item as anything that is part of coinage or used in exchange, among other things. If they really meant for it to exclude modern issues, they would have put in a date. With the definition past into law any coin authorized by congress would clearly be covered, that is especially true of the Silver Eagle where the authorizing law actually calls it a "Numismatic" item. >>
Varitan is NOT claiming that Congress intended the HPA to only cover copies of older coins. He is claiming that Congress intended the HPA to cover coins and medals which were in existence prior to the production of the supposed replica.
The DeMarco judge was way over their head in this case. While ruling in favor of DeMarco, the judge rightly applied U.S.C. Title 18 and FTC Act Section 5. But the judge was woefully incorrect for attributing the ruling to the HPA.
Varitan's statement says it best: "It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark.".
This is the coin that the DeMarco case was all about. When advertised as a "Government Issue Silver Dollar", it is reasonable to see how it might be considered a fake (deceptively advertised) form of currency. But in no way is it a "COPY" of anything else that was ever issued.
So the DeMarco ruling was so far off the mark that I think it could be successfully challenged in future cases such that it would no longer be considered an HPA precedent. >>
A couple of things. These are still arguments and were not accepted by any court or federal agency. Might as well have just been a post on this board.
If as Vartian suggests, Congress disagreed with the DeMarco ruling, why didn't they modify the law to undo DeMarco? They just passed an update to the law last year.
Even if the court or FTC adopted Vartian's interpretation of the HPA, (which they didn't) it still would not have affected my case, since silver eagles and the timberwolf coin were around before the silver rounds in question.
<< <i>Getting back to the "Action" and it's results, specifically outlined in the Settlement Agreement, with regard to any and all legal precedents it sets, two image from the Settlement:
Draw your own conclusions but leave any HPA discussions out of the conclusion since it's not a part of the settlement of the case.
Settlement of the case basically amounts to the defendants saying, "Here's some money now go away" and the Plaintiffs saying "Sounds Great!". Monies amount to a grand to the lead plaintiff and 110 grand to the attorney's. Additional monies would amount to the postage and handling repaid to anybody that cared to send the Silver Rounds back to Westminster Mint. A provision of the settlement is that the rounds could be replaced with like rounds that have COPY on them or the costs of the silver refunded to the claimant based upon the spot price of silver "on the day the round was received by the Settlement Administrator" (i.e. not the day the Silver round was purchased).
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
I'm also curious if the lead plaintiff has returned his silver rounds? >>
I am getting my rounds marked "copy" and returned to me.
If you read the pages listed, this is pretty much standard language for a settlement agreement. It is saying that the settlement agreement cannot be used as evidence against them, just in case the settlement some how does not go through. The judges ruling denying the motion to dismiss can still be referenced in future case, and that was based on the HPA.
As for the Settlement, the defendant offered as much as we could have reasonable gotten at trial, so of course we are going to settle.
<< <i>Getting back to the "Action" and it's results, specifically outlined in the Settlement Agreement, with regard to any and all legal precedents it sets, two image from the Settlement:
Draw your own conclusions but leave any HPA discussions out of the conclusion since it's not a part of the settlement of the case.
Settlement of the case basically amounts to the defendants saying, "Here's some money now go away" and the Plaintiffs saying "Sounds Great!". Monies amount to a grand to the lead plaintiff and 110 grand to the attorney's. Additional monies would amount to the postage and handling repaid to anybody that cared to send the Silver Rounds back to Westminster Mint. A provision of the settlement is that the rounds could be replaced with like rounds that have COPY on them or the costs of the silver refunded to the claimant based upon the spot price of silver "on the day the round was received by the Settlement Administrator" (i.e. not the day the Silver round was purchased).
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
I'm also curious if the lead plaintiff has returned his silver rounds? >>
I am getting my rounds marked "copy" and returned to me.
If you read the pages listed, this is pretty much standard language for a settlement agreement. It is saying that the settlement agreement cannot be used as evidence against them, just in case the settlement some how does not go through. The judges ruling denying the motion to dismiss can still be referenced in future case, and that was based on the HPA.
As for the Settlement, the defendant offered as much as we could have reasonable gotten at trial, so of course we are going to settle. >>
Oh, so you admit that it was all about the money that you could suck out of the Westminster Mint?
Thank You for admitting that.
I decided to change calling the bathroom the John and renamed it the Jim. I feel so much better saying I went to the Jim this morning.
<< <i>Getting back to the "Action" and it's results, specifically outlined in the Settlement Agreement, with regard to any and all legal precedents it sets, two image from the Settlement:
Draw your own conclusions but leave any HPA discussions out of the conclusion since it's not a part of the settlement of the case.
Settlement of the case basically amounts to the defendants saying, "Here's some money now go away" and the Plaintiffs saying "Sounds Great!". Monies amount to a grand to the lead plaintiff and 110 grand to the attorney's. Additional monies would amount to the postage and handling repaid to anybody that cared to send the Silver Rounds back to Westminster Mint. A provision of the settlement is that the rounds could be replaced with like rounds that have COPY on them or the costs of the silver refunded to the claimant based upon the spot price of silver "on the day the round was received by the Settlement Administrator" (i.e. not the day the Silver round was purchased).
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
I'm also curious if the lead plaintiff has returned his silver rounds? >>
I am getting my rounds marked "copy" and returned to me.
If you read the pages listed, this is pretty much standard language for a settlement agreement. It is saying that the settlement agreement cannot be used as evidence against them, just in case the settlement some how does not go through. The judges ruling denying the motion to dismiss can still be referenced in future case, and that was based on the HPA.
As for the Settlement, the defendant offered as much as we could have reasonable gotten at trial, so of course we are going to settle. >>
Oh, so you admit that it was all about the money that you could suck out of the Westminster Mint?
Thank You for admitting that. >>
Oh, nice try but I did not say it was about the money, you are reading into it words that I did not write. When I said "the defendant offered as much as we could have reasonably gotten at trial," I was talking about injunctive relief, the marking of copy, and the refund option. As a matter of fact if we did go to trial my incentive award would have most certainly been higher, as would the attorney fees. In class action lawsuits, the further the case goes the more of an incentive award the lead plaintiff is entitled to.
BTW - If it was about the money, I would happily admitted it, because there would be nothing wrong with that. I have been very clear about my motives, and you can read all about them in this thread, look where I answer D Carr's questions.
Comments
<< <i><< Newbs are ripped off all the time by these, do you not know what kind of money these telemarketers charge? >>
Filing a garbage lawsuit against a producer of silver rounds won't change the verbiage or tactics of the telemarketers one iota, but it does stain the bullion industry.
You still haven't provided one example of someone being ripped off because of a buyer thinking that he was buying a Silver Eagle and consequently paying a whopping $2.00 more for the 1 oz. of silver. Surely, you must have at least one example. Surely, the judge needed at least one example. Oh, unless it was Minnesota.
I've said my piece. This thread isn't going anywhere. >>
This was the only purpose of the lawsuit.
C. Class counsel’s Petition for Fees and Costs is GRANTED. An award of $110,000 in attorney’s fees and costs to Class counsel DeNittis Osefchen, P.C. is approved and is to be paid in accordance with the terms of the Settlement Agreement.
<< <i>Cannot always go by the price a company posts on their website, They added other costs, not only did they charge shipping but they had extra cost for "handling fee / surcharge." >>
Sure. But not relevant as your point was about paying the same price for ASEs vs generic rounds. That doesn't change if uniform rip-off handling fees are added.
And Dan, some excellent points made. I think I'm signing off on this thread...
<< <i>
<< <i>Cannot always go by the price a company posts on their website, They added other costs, not only did they charge shipping but they had extra cost for "handling fee / surcharge." >>
Sure. But not relevant as your point was about paying the same price for ASEs vs generic rounds. That doesn't change if uniform rip-off handling fees are added.
And Dan, some excellent points made. I think I'm signing off on this thread... >>
It is relevant if they are charging a silver eagle price for a silver round, even if they also charge more for the silver eagle.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>Thinking way back to when I was a "newbie" ...
Paying close to silver "spot" for a round was fine, regardless of whether the thing looked somewhat like a US coin or not. No harm done either way.
The biggest pitfall for a newbie was polished VF-XF genuine coins marketed as "BU" (Brilliant Uncirculated). I personally saw a few friends pay too much for polished coins and then become dejected when they tried to sell or trade them months later. Of course, the reason they bought the coins in the first place was that they were much cheaper than true BU coins. But there was some real damage being done to numismatics and some people were leaving the hobby and not coming back. Education and third-party grading is what alleviated the problem to a great extent, not lawsuits and government intervention. The free market (the innovation of third-party certification) took care of the problem.
In a way, I think this lawsuit might have an effect that is opposite of that which was desired. To legislators in Minnesota (for example), this lawsuit might send a message that reinforces their view that coin dealers can not be trusted and need more regulation. In this business (numismatics), government intervention and regulation is bad. Free-market solutions are vastly superior. >>
One of the problems we had in Minnesota is the industry was not cleaning itself up. Some key folks got ripped off by the telemarketers, and all of the sudden the Attorney General is pushing this new regulation. For some reason they go to the bad guys, and listen to them instead of the good people in the industry. All of the sudden the bad guys in the industry are writing the legislation. What do they do? They put up obstacles to get the good guy out of the business so they can have the whole market to themselves. Keep in mind the silver rounds in my lawsuit are not covered by the coin bullion law, and this is likely not a coincidence.
My lawsuit may be exposing some of the problems in the industry, but it is not creating them.
Join the fight against Minnesota's unjust coin dealer tax law.
read what you wrote because you're chasing your tail.
Not sure anyone call see this lawsuit having any effect on telemarketers (especially since it was not aimed at them).
And if a newbe cannot tell the difference between the rounds and a real silver eagle, hard to believe they will notice a little copy stamp (or even know what it means). The telemarketers can still market them the same way and sell them for the same price.
<< <i>My own two cents is that if the Hobby Protection Act ever gets to a circuit court, it will be deemed "void for vagueness," a legal term meaning a reasonable person reading the act cannot tell exactly what acts are allowed and what acts are proscribed. At the district court level, many judges just opt to deal with the law before them without considering whether the law even makes any sense. The HPA seems to be in the category where no two people agree exactly what you can and can't do (except for the really easy fact patterns). >>
Problem is the reason there is confusion on this board is there are a lot of people who have not read it. Their are also a lot of people that think it says what they want them to say instead of what it actually says.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>It is relevant if they are charging a silver eagle price for a silver round, even if they also charge more for the silver eagle.
read what you wrote because you're chasing your tail. >>
OK, I will spell it out for you. These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion. What is relevant is what they charge relative to the industry as a whole for a particular product.
Besides I am not just talking about the first purchaser being duped, but also talking about subsequent purchasers being duped.
Of course you have already told us that you don't care if people get duped, so why are you even asking these questions anyway.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>Not sure anyone call see this lawsuit having any effect on telemarketers (especially since it was not aimed at them). >>
oops, I think you missed my other two posts where I linked to the Time magazine and Sharesleuths articles. When you are reading these keep in mind that the defendants in my case were the Highland Mint, the Westminster Mint, Ian Clay, and Michael Kott. The statement you made above is clearly not accurate.
Check out this Time Magazine article from June 24, 2001, Titled "The Seceret life of JB Oxford."
http://content.time.com/time/magazine/article/0,9171,135156,00.html
There is some good information on the history of the Highland mint, and Irving Kott in this story from Sharesleuths on February 4, 2014 titled "Trick Play: Memorabilia company peddled Patriots, Seahawks gear with forged player autographs." Ian Clay and the Westminster mint is also listed.
http://sharesleuth.com/short-takes/2015/02/trick-play-memorabilia-company-peddled-patriots-seahawks-gear-with-forged-player-autographs
If you don't want to read that whole article, check out the sections titled "Highland's Past" and "Michael Kott's Past."
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>Thinking way back to when I was a "newbie" ...
Paying close to silver "spot" for a round was fine, regardless of whether the thing looked somewhat like a US coin or not. No harm done either way.
The biggest pitfall for a newbie was polished VF-XF genuine coins marketed as "BU" (Brilliant Uncirculated). I personally saw a few friends pay too much for polished coins and then become dejected when they tried to sell or trade them months later. Of course, the reason they bought the coins in the first place was that they were much cheaper than true BU coins. But there was some real damage being done to numismatics and some people were leaving the hobby and not coming back. Education and third-party grading is what alleviated the problem to a great extent, not lawsuits and government intervention. The free market (the innovation of third-party certification) took care of the problem.
In a way, I think this lawsuit might have an effect that is opposite of that which was desired. To legislators in Minnesota (for example), this lawsuit might send a message that reinforces their view that coin dealers can not be trusted and need more regulation. In this business (numismatics), government intervention and regulation is bad. Free-market solutions are vastly superior. >>
+1!
<< <i>My own two cents is that if the Hobby Protection Act ever gets to a circuit court, it will be deemed "void for vagueness," a legal term meaning a reasonable person reading the act cannot tell exactly what acts are allowed and what acts are proscribed. At the district court level, many judges just opt to deal with the law before them without considering whether the law even makes any sense. The HPA seems to be in the category where no two people agree exactly what you can and can't do (except for the really easy fact patterns). >>
I wouldn't count on it. It is no more vague than 90% of the rest of the United States Code. That is also why the HPA gives the FTC power to promulgate administrative regulations with the full force of law, and the FTC has done so. Most important are its clarifications as to what constitutes an original numismatic item versus an imitation numismatic item. As for those who cannot agree on what is permitted or prohibited, many of those people have an inherent stake in their constrained reading of the statute and relevant administrative regulations when I think a court could plainly and clearly apply the plain meaning of the statute and the administrative regulations. Insofar as the latter is concerned, there are FTC opinions to help guide people and an administrative agency's interpretation of its own rules are given deference by the courts - it is actually referred to as Chevron Deference after the U.S. Supreme Court case that created it.
Experience the World through Numismatics...it's more than you can imagine.
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!)
Join the fight against Minnesota's unjust coin dealer tax law.
yes, as a matter of fact it is.
<< <i>These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion.
yes, as a matter of fact it is. >>
Funny how the defense attorney's never brought it up.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>
<< <i>
<< <i>Some of you may be saying, while they are still getting silver. But I am saying they were duped, and who here faced with the opportunity to buy silver eagles or silver rounds at the same price, would pick the silver rounds? Not many. >>
What was the price spread between the rounds and authentic ASEs at the time of purchase? (I apologize if it is buried in the thread right now). Currently, Westminster sells ASEs for $19.06 and generic walking liberty rounds are $17.05. That greatly reduces the argument of customers being ripped off as customers are not paying ASE prices for generic rounds. They are paying generic round prices for generic rounds. If you had purchased $20K in generic silver rounds and paid ASE+ pricing, there would be some sympathy.
I'm afraid of being ripped of by buying bruised fruit at the grocery store. It looks from the outside like it is good, but on the inside it is bruised. We need a law requiring stores to mark bruised fruit. I'm afraid I might be charmed by a slick salesman and buy a powerboat I don't need or can't afford. We need a law that the boat store needs to account for my financial situation before selling me a boat. I think there is just a fundamental difference in the amount of government "protection" and hand holding that should happen.
I believe you are on the right side of the war, but picked the wrong battle. >>
Cannot always go by the price a company posts on their website, They added other costs, not only did they charge shipping but they had extra cost for "handling fee / surcharge." >>
<GASP> No way! You saying they actually had the unmitigated GALL to charge for "Shipping and Handling"??? Over and Above the piece of the silver bullion??
I am absolutely floored that any "business" would have the nerve to do such a thing!! Anybody who sells on eBay knows, with absolute certainty, that this is a no no!
The name is LEE!
<< <i>
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!) >>
I disagree that the DeMarco case serves as a precedent for any HPA action (more on that below).
It is perhaps fortunate for you that the defendants did not retain Armen Vartian as their attorney:
Federal Trade Commission; 16 CFR Part 304; Rules and Regulations Under the Hobby Protection Act #00011
From the above link:
<< <i>I am Armen Vartian, an attorney specialized in matters involving rare coins and other collectibles. I received my J.D. in 1981 from Harvard Law School, and am admitted to practice in California, Illinois and New York, in addition to numerous federal circuits and district courts nationwide. My clients include many of the most important stakeholders in the rare coin and collectibles businesses, including Heritage Auctions (VP-General Counsel 1986-90), Professional Coin Grading Service (PCGS)(outside counsel since 1990) and the Professional Numismatists Guild (Legal Counsel since 1992), as well as collectors and investors in rare coins and other collectibles. I have written the “Collectibles and Law” column in the numismatic trade publication Coin World since 1996, and am the author of the book “Legal Guide to Buying and Selling Art and Collectibles” (Bonus Press 1997). I submit these comments in a personal capacity and am not speaking for any of the above entities or anyone else with whom I have had a professional relationship. ... >>
<< <i>... The only other HPA case of note was DeMarco v. National Collector’s Mint, 229 F.R.D. 73 (S.D.N.Y. 2005). This was a class action relating to a coin called “Freedom Tower Silver Dollar”. In October 2004, New York Attorney General Eliot Spitzer had sued National Collector’s Mint, Inc., alleging that NCM engaged in “false advertising and deceptive, fraudulent, and illegal practices” in marketing coins featuring the World Trade Center and said to have been minted with silver found at Ground Zero. Spitzer noted that these coins displayed the motto “In God We Trust” and the denomination “One Dollar”, and were available in sets with genuine 2004 American Eagle coins, “foster[ing] the impression that the former are legal tender.” Although the coins were minted under authority of the Northern Marianas Islands, apparently the reference to the Marianas was subtle (the coin referred to them only along its edges), and allegedly some consumers thought the coins were U.S. coinage because of the motto and the denomination. The New York State Supreme Court ruled that the coins were, in fact, deceptive and ordered NCM to stop selling them, arrange for customer refunds, and pay a civil penalty of approximately $370,000. The case was based entirely on New York State law, and the HPA was not mentioned. Subsequently, a civil class action was filed in New York federal court under the HPA on behalf of customers who purchased Freedom Tower Silver Dollars. The plaintiffs alleged that these coins “purported to be” original numismatic items under the Act because of the motto and denomination, and because they were marketed as being “legal tender”. The court accepted these arguments, stating “[T]he term ‘imitation numismatic item’ includes not only reproductions or counterfeits of existing coins, but also any item that ‘purports to be, but in fact is not, an original numismatic item’. The FTSD falls within the ambit of the statute because it ‘purports to be, but is not, an original numismatic item’. The FTSD purports to be a legally authorized, government-issued silver dollar. However, the Complaint alleges that the FTSD is neither legally authorized nor government-issued, and is certainly not a ‘silver dollar’ which is U.S. legal tender….That makes it an imitation numismatic device. Defendants’ argument that the coin is not a reproduction of a real Government-minted coin reads half the definition of that term out of the statute”. I believe that the New York state court correctly applied New York law, but that the federal court misapplied the HPA. The “Freedom Tower Silver Dollars” were not “imitations” of any conceivable original numismatic item. By definition they were made after September 11, 2001, so there was never any doubt that they were contemporary pieces of the type Congress stated were covered by existing counterfeiting laws and were not covered by the HPA. The Commission in Gold Bullion International, while recognizing that Congress’s use of the word “counterfeit” in the HPA allowed some leeway in regulating coins which resembled actual “original numismatic items”, clearly would not have gone as far as did the DeMarco judge, to find that a coin which itself was original was in fact a copy subject to the HPA. The court’s quoting of the definition of “imitation numismatic item” ignores the fact that this definition was itself qualified by the statute’s definition of “original numismatic item”. It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark. Current Situation Manufacturers and distributors of coins as collectibles are faced with the near-unlimited scope of the DeMarco opinion, which declares, in effect, that anything that looks like it might be a legal tender coin must be marked “COPY”. But other than size and shape, how many other indicia of legal tender coinage need to be present before the HPA applies? This problem is not the result of the statute itself, which in my opinion was clear that the HPA applies only to copies of formerly-circulating coins and medals. It is in the interpretation of the statute, which has seized upon the “counterfeit” and “purports to be” language to distort Congress’s meaning and substitute the HPA for FTC Act Section 5 as an all-purpose consumer protection law. But Section 5 does not provide a private right of action, and the HPA does. Hence the seller of Freedom Tower Silver Dollars facing a private class action while the Commission [FTC], apparently, chose not to act. Clarity is needed, and the Commission should amend the regulations to accomplish this. ... >>
<< <i>
<< <i>The only winners in class action suits are the lawyers. >>
I'll second that motion!
Agreed. Most if not all class action lawsuits are a gravy train for attorneys, with little "relief" for the "harmed" class. This case probably has at least the appearance of some merit, but I fail to see how the plaintiff was harmed financially (3 rounds? ) and the rounds may resemble the real thing, but with no denomination, they look different enough to me as the defendants have suggested.
Just another transfer of wealth to greedy class-action attorneys.
<< <i>
<< <i>These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion.
yes, as a matter of fact it is. >>
Funny how the defense attorney's never brought it up.
And so logic is irrelevant. Fantastic.
<< <i>
<< <i>
<< <i>These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion.
yes, as a matter of fact it is. >>
Funny how the defense attorney's never brought it up.
And so logic is irrelevant. Fantastic. >>
Logic is relevant. The problem is that Keets does not use any logic or explain his reasoning. Just says that what he said was relevant.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>
<< <i>These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion.
yes, as a matter of fact it is. >>
Funny how the defense attorney's never brought it up.
This was the entire premise to your argument. That people were being charged silver eagle money for these rounds. Now you say they were not being charged the same for these rounds as the were for silver eagles.
So if these telemarketers are over charging for silver eagles, maybe you should sue the US Mint for producing them as well.
<< <i>
<< <i>
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!) >>
I disagree that the DeMarco case serves as a precedent for any HPA action (more on that below).
It is perhaps fortunate for you that the defendants did not retain Armen Vartian as their attorney:
Federal Trade Commission; 16 CFR Part 304; Rules and Regulations Under the Hobby Protection Act #00011
From the above link:
<< <i>I am Armen Vartian, an attorney specialized in matters involving rare coins and other collectibles. I received my J.D. in 1981 from Harvard Law School, and am admitted to practice in California, Illinois and New York, in addition to numerous federal circuits and district courts nationwide. My clients include many of the most important stakeholders in the rare coin and collectibles businesses, including Heritage Auctions (VP-General Counsel 1986-90), Professional Coin Grading Service (PCGS)(outside counsel since 1990) and the Professional Numismatists Guild (Legal Counsel since 1992), as well as collectors and investors in rare coins and other collectibles. I have written the “Collectibles and Law” column in the numismatic trade publication Coin World since 1996, and am the author of the book “Legal Guide to Buying and Selling Art and Collectibles” (Bonus Press 1997). I submit these comments in a personal capacity and am not speaking for any of the above entities or anyone else with whom I have had a professional relationship. ... >>
<< <i>... The only other HPA case of note was DeMarco v. National Collector’s Mint, 229 F.R.D. 73 (S.D.N.Y. 2005). This was a class action relating to a coin called “Freedom Tower Silver Dollar”. In October 2004, New York Attorney General Eliot Spitzer had sued National Collector’s Mint, Inc., alleging that NCM engaged in “false advertising and deceptive, fraudulent, and illegal practices” in marketing coins featuring the World Trade Center and said to have been minted with silver found at Ground Zero. Spitzer noted that these coins displayed the motto “In God We Trust” and the denomination “One Dollar”, and were available in sets with genuine 2004 American Eagle coins, “foster[ing] the impression that the former are legal tender.” Although the coins were minted under authority of the Northern Marianas Islands, apparently the reference to the Marianas was subtle (the coin referred to them only along its edges), and allegedly some consumers thought the coins were U.S. coinage because of the motto and the denomination. The New York State Supreme Court ruled that the coins were, in fact, deceptive and ordered NCM to stop selling them, arrange for customer refunds, and pay a civil penalty of approximately $370,000. The case was based entirely on New York State law, and the HPA was not mentioned. Subsequently, a civil class action was filed in New York federal court under the HPA on behalf of customers who purchased Freedom Tower Silver Dollars. The plaintiffs alleged that these coins “purported to be” original numismatic items under the Act because of the motto and denomination, and because they were marketed as being “legal tender”. The court accepted these arguments, stating “[T]he term ‘imitation numismatic item’ includes not only reproductions or counterfeits of existing coins, but also any item that ‘purports to be, but in fact is not, an original numismatic item’. The FTSD falls within the ambit of the statute because it ‘purports to be, but is not, an original numismatic item’. The FTSD purports to be a legally authorized, government-issued silver dollar. However, the Complaint alleges that the FTSD is neither legally authorized nor government-issued, and is certainly not a ‘silver dollar’ which is U.S. legal tender….That makes it an imitation numismatic device. Defendants’ argument that the coin is not a reproduction of a real Government-minted coin reads half the definition of that term out of the statute”. I believe that the New York state court correctly applied New York law, but that the federal court misapplied the HPA. The “Freedom Tower Silver Dollars” were not “imitations” of any conceivable original numismatic item. By definition they were made after September 11, 2001, so there was never any doubt that they were contemporary pieces of the type Congress stated were covered by existing counterfeiting laws and were not covered by the HPA. The Commission in Gold Bullion International, while recognizing that Congress’s use of the word “counterfeit” in the HPA allowed some leeway in regulating coins which resembled actual “original numismatic items”, clearly would not have gone as far as did the DeMarco judge, to find that a coin which itself was original was in fact a copy subject to the HPA. The court’s quoting of the definition of “imitation numismatic item” ignores the fact that this definition was itself qualified by the statute’s definition of “original numismatic item”. It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark. Current Situation Manufacturers and distributors of coins as collectibles are faced with the near-unlimited scope of the DeMarco opinion, which declares, in effect, that anything that looks like it might be a legal tender coin must be marked “COPY”. But other than size and shape, how many other indicia of legal tender coinage need to be present before the HPA applies? This problem is not the result of the statute itself, which in my opinion was clear that the HPA applies only to copies of formerly-circulating coins and medals. It is in the interpretation of the statute, which has seized upon the “counterfeit” and “purports to be” language to distort Congress’s meaning and substitute the HPA for FTC Act Section 5 as an all-purpose consumer protection law. But Section 5 does not provide a private right of action, and the HPA does. Hence the seller of Freedom Tower Silver Dollars facing a private class action while the Commission [FTC], apparently, chose not to act. Clarity is needed, and the Commission should amend the regulations to accomplish this. ... >>
>>
A few comments on this.
First, keep in mind what this is, it is one person requesting changes to the federal regulations in the hobby protection act. Anyone can submit a comment, and anyone can say what they want. It means absolutely nothing to how the HPA is enforced or interpreted, unless it is adopted in the regulation promulgated by the FTC. It is my understanding that none of the changes he wanted were included in the regulations.
It doesn't matter if Armen Vartian was the defense attorney they hired, the judge in my case, and the judge in the DeMarco case rejected his arguments.
Next he is factually incorrect in at least one area, which makes we wonder if his other "facts" are incorrect as well. Demarco was filed two weeks before Eliot Spitzer filed suit. This would have been easy for him to verify with court filings. Making easily verifiable incorrect statements when you are submitting a comment on a regulation you want changed, is not a good idea.
I also question his claim that congress intended the HPA to only cover copies of older coins. If this is the case why wouldn't they write that into the law. In the law they defined an Original Numismatic Item as anything that is part of coinage or used in exchange, among other things. If they really meant for it to exclude modern issues, they would have put in a date. With the definition past into law any coin authorized by congress would clearly be covered, that is especially true of the Silver Eagle where the authorizing law actually calls it a "Numismatic" item.
Join the fight against Minnesota's unjust coin dealer tax law.
a short while back! Namely, "I did not have sex with that woman!"
Some folks will deny reality in the face of illogical thinking to the point
that they just look silly and my Daddy cautioned me about arguing with these folks
in public.........
The name is LEE!
<< <i>
<< <i>
<< <i>These people charge more for everything. What they charge relative for each of there products is not relevant, to this discussion.
yes, as a matter of fact it is. >>
Funny how the defense attorney's never brought it up.
This was the entire premise to your argument. That people were being charged silver eagle money for these rounds. Now you say they were not being charged the same for these rounds as the were for silver eagles.
So if these telemarketers are over charging for silver eagles, maybe you should sue the US Mint for producing them as well. >>
No, that was not the premise of my argument, you are taking things out of context. My argument is that there is a difference between the value of a silver eagle and a silver round that looks like a silver eagle. Who paid what for what did not factor in to my main argument. My point is that there is a difference in value, so if someone is being sold a silver round and they are deceived into thinking it is a silver eagle, they have been duped. It really doesn't matter what price is charge, there is deception there. Actually, it doesn't even matter if there is a difference in value since there may be other differences such as liquidity.
In my example I am not saying that deception happened the first time the round is sold. The first few times it trades hands maybe were done with everyone knowing what was done, but down the road that may not be the case. The Hobby Protection Act is really not that intrusive of an act. It is really just a disclosure law that is saying, just mark it copy so people are not deceived in the future.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>
<< <i>
<< <i>
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!) >>
I disagree that the DeMarco case serves as a precedent for any HPA action (more on that below).
It is perhaps fortunate for you that the defendants did not retain Armen Vartian as their attorney:
Federal Trade Commission; 16 CFR Part 304; Rules and Regulations Under the Hobby Protection Act #00011
From the above link:
<< <i>I am Armen Vartian, an attorney specialized in matters involving rare coins and other collectibles. I received my J.D. in 1981 from Harvard Law School, and am admitted to practice in California, Illinois and New York, in addition to numerous federal circuits and district courts nationwide. My clients include many of the most important stakeholders in the rare coin and collectibles businesses, including Heritage Auctions (VP-General Counsel 1986-90), Professional Coin Grading Service (PCGS)(outside counsel since 1990) and the Professional Numismatists Guild (Legal Counsel since 1992), as well as collectors and investors in rare coins and other collectibles. I have written the “Collectibles and Law” column in the numismatic trade publication Coin World since 1996, and am the author of the book “Legal Guide to Buying and Selling Art and Collectibles” (Bonus Press 1997). I submit these comments in a personal capacity and am not speaking for any of the above entities or anyone else with whom I have had a professional relationship. ... >>
<< <i>... The only other HPA case of note was DeMarco v. National Collector’s Mint, 229 F.R.D. 73 (S.D.N.Y. 2005). This was a class action relating to a coin called “Freedom Tower Silver Dollar”. In October 2004, New York Attorney General Eliot Spitzer had sued National Collector’s Mint, Inc., alleging that NCM engaged in “false advertising and deceptive, fraudulent, and illegal practices” in marketing coins featuring the World Trade Center and said to have been minted with silver found at Ground Zero. Spitzer noted that these coins displayed the motto “In God We Trust” and the denomination “One Dollar”, and were available in sets with genuine 2004 American Eagle coins, “foster[ing] the impression that the former are legal tender.” Although the coins were minted under authority of the Northern Marianas Islands, apparently the reference to the Marianas was subtle (the coin referred to them only along its edges), and allegedly some consumers thought the coins were U.S. coinage because of the motto and the denomination. The New York State Supreme Court ruled that the coins were, in fact, deceptive and ordered NCM to stop selling them, arrange for customer refunds, and pay a civil penalty of approximately $370,000. The case was based entirely on New York State law, and the HPA was not mentioned. Subsequently, a civil class action was filed in New York federal court under the HPA on behalf of customers who purchased Freedom Tower Silver Dollars. The plaintiffs alleged that these coins “purported to be” original numismatic items under the Act because of the motto and denomination, and because they were marketed as being “legal tender”. The court accepted these arguments, stating “[T]he term ‘imitation numismatic item’ includes not only reproductions or counterfeits of existing coins, but also any item that ‘purports to be, but in fact is not, an original numismatic item’. The FTSD falls within the ambit of the statute because it ‘purports to be, but is not, an original numismatic item’. The FTSD purports to be a legally authorized, government-issued silver dollar. However, the Complaint alleges that the FTSD is neither legally authorized nor government-issued, and is certainly not a ‘silver dollar’ which is U.S. legal tender….That makes it an imitation numismatic device. Defendants’ argument that the coin is not a reproduction of a real Government-minted coin reads half the definition of that term out of the statute”. I believe that the New York state court correctly applied New York law, but that the federal court misapplied the HPA. The “Freedom Tower Silver Dollars” were not “imitations” of any conceivable original numismatic item. By definition they were made after September 11, 2001, so there was never any doubt that they were contemporary pieces of the type Congress stated were covered by existing counterfeiting laws and were not covered by the HPA. The Commission in Gold Bullion International, while recognizing that Congress’s use of the word “counterfeit” in the HPA allowed some leeway in regulating coins which resembled actual “original numismatic items”, clearly would not have gone as far as did the DeMarco judge, to find that a coin which itself was original was in fact a copy subject to the HPA. The court’s quoting of the definition of “imitation numismatic item” ignores the fact that this definition was itself qualified by the statute’s definition of “original numismatic item”. It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark. Current Situation Manufacturers and distributors of coins as collectibles are faced with the near-unlimited scope of the DeMarco opinion, which declares, in effect, that anything that looks like it might be a legal tender coin must be marked “COPY”. But other than size and shape, how many other indicia of legal tender coinage need to be present before the HPA applies? This problem is not the result of the statute itself, which in my opinion was clear that the HPA applies only to copies of formerly-circulating coins and medals. It is in the interpretation of the statute, which has seized upon the “counterfeit” and “purports to be” language to distort Congress’s meaning and substitute the HPA for FTC Act Section 5 as an all-purpose consumer protection law. But Section 5 does not provide a private right of action, and the HPA does. Hence the seller of Freedom Tower Silver Dollars facing a private class action while the Commission [FTC], apparently, chose not to act. Clarity is needed, and the Commission should amend the regulations to accomplish this. ... >>
>>
A few comments on this.
First, keep in mind what this is, it is one person requesting changes to the federal regulations in the hobby protection act. Anyone can submit a comment, and anyone can say what they want. It means absolutely nothing to how the HPA is enforced or interpreted, unless it is adopted in the regulation promulgated by the FTC. It is my understanding that none of the changes he wanted were included in the regulations.
It doesn't matter if Armen Vartian was the defense attorney they hired, the judge in my case, and the judge in the DeMarco case rejected his arguments.
Next he is factually incorrect in at least one area, which makes we wonder if his other "facts" are incorrect as well. Demarco was filed two weeks before Eliot Spitzer filed suit. This would have been easy for him to verify with court filings. Making easily verifiable incorrect statements when you are submitting a comment on a regulation you want changed, is not a good idea.
I also question his claim that congress intended the HPA to only cover copies of older coins. If this is the case why wouldn't they write that into the law. In the law they defined an Original Numismatic Item as anything that is part of coinage or used in exchange, among other things. If they really meant for it to exclude modern issues, they would have put in a date. With the definition past into law any coin authorized by congress would clearly be covered, that is especially true of the Silver Eagle where the authorizing law actually calls it a "Numismatic" item. >>
Varitan is NOT claiming that Congress intended the HPA to only cover copies of older coins. He is claiming that Congress intended the HPA to cover coins and medals which were in existence prior to the production of the supposed replica.
The DeMarco judge was way over their head in this case. While ruling in favor of DeMarco, the judge rightly applied U.S.C. Title 18 and FTC Act Section 5. But the judge was woefully incorrect for attributing the ruling to the HPA.
Varitan's statement says it best: "It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark.".
This is the coin that the DeMarco case was all about. When advertised as a "Government Issue Silver Dollar", it is reasonable to see how it might be considered a fake form of currency, deceptively advertised. But in no way is it a "COPY" of anything else that was ever issued.
So the DeMarco ruling was so far off the mark that I think it could be successfully challenged in future cases such that it would no longer be considered an HPA precedent.
Draw your own conclusions but leave any HPA discussions out of the conclusion since it's not a part of the settlement of the case.
Settlement of the case basically amounts to the defendants saying, "Here's some money now go away" and the Plaintiffs saying "Sounds Great!".
Monies amount to a grand to the lead plaintiff and 110 grand to the attorney's.
Additional monies would amount to the postage and handling repaid to anybody that cared to send the Silver Rounds back to Westminster Mint. A provision of the settlement is that the rounds could be replaced with like rounds that have COPY on them or the costs of the silver refunded to the claimant based upon the spot price of silver "on the day the round was received by the Settlement Administrator" (i.e. not the day the Silver round was purchased).
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
I'm also curious if the lead plaintiff has returned his silver rounds?
The name is LEE!
I offered no explanation because any reasonable person who reads the thread will be able to infer my "logic" easily. perhaps I was wrong.
<< <i>
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
>>
Your basis is is still $30 no matter how you slice it. You're out nothing extra if Westminster mint pays shipping both ways.
<< <i>
<< <i>
<< <i>
<< <i>
<< <i>So in 30 words or less, what did this solve and what is the legal precedence, if any? >>
It has gotten one manufacture to comply with the HPA. It has inspired other lawsuits that could create a ripple throughout the industry. No Precedence, that is DeMarco. (28!) >>
I disagree that the DeMarco case serves as a precedent for any HPA action (more on that below).
It is perhaps fortunate for you that the defendants did not retain Armen Vartian as their attorney:
Federal Trade Commission; 16 CFR Part 304; Rules and Regulations Under the Hobby Protection Act #00011
From the above link:
<< <i>I am Armen Vartian, an attorney specialized in matters involving rare coins and other collectibles. I received my J.D. in 1981 from Harvard Law School, and am admitted to practice in California, Illinois and New York, in addition to numerous federal circuits and district courts nationwide. My clients include many of the most important stakeholders in the rare coin and collectibles businesses, including Heritage Auctions (VP-General Counsel 1986-90), Professional Coin Grading Service (PCGS)(outside counsel since 1990) and the Professional Numismatists Guild (Legal Counsel since 1992), as well as collectors and investors in rare coins and other collectibles. I have written the “Collectibles and Law” column in the numismatic trade publication Coin World since 1996, and am the author of the book “Legal Guide to Buying and Selling Art and Collectibles” (Bonus Press 1997). I submit these comments in a personal capacity and am not speaking for any of the above entities or anyone else with whom I have had a professional relationship. ... >>
<< <i>... The only other HPA case of note was DeMarco v. National Collector’s Mint, 229 F.R.D. 73 (S.D.N.Y. 2005). This was a class action relating to a coin called “Freedom Tower Silver Dollar”. In October 2004, New York Attorney General Eliot Spitzer had sued National Collector’s Mint, Inc., alleging that NCM engaged in “false advertising and deceptive, fraudulent, and illegal practices” in marketing coins featuring the World Trade Center and said to have been minted with silver found at Ground Zero. Spitzer noted that these coins displayed the motto “In God We Trust” and the denomination “One Dollar”, and were available in sets with genuine 2004 American Eagle coins, “foster[ing] the impression that the former are legal tender.” Although the coins were minted under authority of the Northern Marianas Islands, apparently the reference to the Marianas was subtle (the coin referred to them only along its edges), and allegedly some consumers thought the coins were U.S. coinage because of the motto and the denomination. The New York State Supreme Court ruled that the coins were, in fact, deceptive and ordered NCM to stop selling them, arrange for customer refunds, and pay a civil penalty of approximately $370,000. The case was based entirely on New York State law, and the HPA was not mentioned. Subsequently, a civil class action was filed in New York federal court under the HPA on behalf of customers who purchased Freedom Tower Silver Dollars. The plaintiffs alleged that these coins “purported to be” original numismatic items under the Act because of the motto and denomination, and because they were marketed as being “legal tender”. The court accepted these arguments, stating “[T]he term ‘imitation numismatic item’ includes not only reproductions or counterfeits of existing coins, but also any item that ‘purports to be, but in fact is not, an original numismatic item’. The FTSD falls within the ambit of the statute because it ‘purports to be, but is not, an original numismatic item’. The FTSD purports to be a legally authorized, government-issued silver dollar. However, the Complaint alleges that the FTSD is neither legally authorized nor government-issued, and is certainly not a ‘silver dollar’ which is U.S. legal tender….That makes it an imitation numismatic device. Defendants’ argument that the coin is not a reproduction of a real Government-minted coin reads half the definition of that term out of the statute”. I believe that the New York state court correctly applied New York law, but that the federal court misapplied the HPA. The “Freedom Tower Silver Dollars” were not “imitations” of any conceivable original numismatic item. By definition they were made after September 11, 2001, so there was never any doubt that they were contemporary pieces of the type Congress stated were covered by existing counterfeiting laws and were not covered by the HPA. The Commission in Gold Bullion International, while recognizing that Congress’s use of the word “counterfeit” in the HPA allowed some leeway in regulating coins which resembled actual “original numismatic items”, clearly would not have gone as far as did the DeMarco judge, to find that a coin which itself was original was in fact a copy subject to the HPA. The court’s quoting of the definition of “imitation numismatic item” ignores the fact that this definition was itself qualified by the statute’s definition of “original numismatic item”. It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark. Current Situation Manufacturers and distributors of coins as collectibles are faced with the near-unlimited scope of the DeMarco opinion, which declares, in effect, that anything that looks like it might be a legal tender coin must be marked “COPY”. But other than size and shape, how many other indicia of legal tender coinage need to be present before the HPA applies? This problem is not the result of the statute itself, which in my opinion was clear that the HPA applies only to copies of formerly-circulating coins and medals. It is in the interpretation of the statute, which has seized upon the “counterfeit” and “purports to be” language to distort Congress’s meaning and substitute the HPA for FTC Act Section 5 as an all-purpose consumer protection law. But Section 5 does not provide a private right of action, and the HPA does. Hence the seller of Freedom Tower Silver Dollars facing a private class action while the Commission [FTC], apparently, chose not to act. Clarity is needed, and the Commission should amend the regulations to accomplish this. ... >>
>>
A few comments on this.
First, keep in mind what this is, it is one person requesting changes to the federal regulations in the hobby protection act. Anyone can submit a comment, and anyone can say what they want. It means absolutely nothing to how the HPA is enforced or interpreted, unless it is adopted in the regulation promulgated by the FTC. It is my understanding that none of the changes he wanted were included in the regulations.
It doesn't matter if Armen Vartian was the defense attorney they hired, the judge in my case, and the judge in the DeMarco case rejected his arguments.
Next he is factually incorrect in at least one area, which makes we wonder if his other "facts" are incorrect as well. Demarco was filed two weeks before Eliot Spitzer filed suit. This would have been easy for him to verify with court filings. Making easily verifiable incorrect statements when you are submitting a comment on a regulation you want changed, is not a good idea.
I also question his claim that congress intended the HPA to only cover copies of older coins. If this is the case why wouldn't they write that into the law. In the law they defined an Original Numismatic Item as anything that is part of coinage or used in exchange, among other things. If they really meant for it to exclude modern issues, they would have put in a date. With the definition past into law any coin authorized by congress would clearly be covered, that is especially true of the Silver Eagle where the authorizing law actually calls it a "Numismatic" item. >>
Varitan is NOT claiming that Congress intended the HPA to only cover copies of older coins. He is claiming that Congress intended the HPA to cover coins and medals which were in existence prior to the production of the supposed replica.
The DeMarco judge was way over their head in this case. While ruling in favor of DeMarco, the judge rightly applied U.S.C. Title 18 and FTC Act Section 5. But the judge was woefully incorrect for attributing the ruling to the HPA.
Varitan's statement says it best: "It seems ludicrous to think that Congress intended that Freedom Tower Silver Dollars be sold to the public carrying a “COPY” mark.".
This is the coin that the DeMarco case was all about. When advertised as a "Government Issue Silver Dollar", it is reasonable to see how it might be considered a fake (deceptively advertised) form of currency. But in no way is it a "COPY" of anything else that was ever issued.
So the DeMarco ruling was so far off the mark that I think it could be successfully challenged in future cases such that it would no longer be considered an HPA precedent. >>
A couple of things. These are still arguments and were not accepted by any court or federal agency. Might as well have just been a post on this board.
If as Vartian suggests, Congress disagreed with the DeMarco ruling, why didn't they modify the law to undo DeMarco? They just passed an update to the law last year.
Even if the court or FTC adopted Vartian's interpretation of the HPA, (which they didn't) it still would not have affected my case, since silver eagles and the timberwolf coin were around before the silver rounds in question.
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<< <i>Getting back to the "Action" and it's results, specifically outlined in the Settlement Agreement, with regard to any and all legal precedents it sets, two image from the Settlement:
Draw your own conclusions but leave any HPA discussions out of the conclusion since it's not a part of the settlement of the case.
Settlement of the case basically amounts to the defendants saying, "Here's some money now go away" and the Plaintiffs saying "Sounds Great!".
Monies amount to a grand to the lead plaintiff and 110 grand to the attorney's.
Additional monies would amount to the postage and handling repaid to anybody that cared to send the Silver Rounds back to Westminster Mint. A provision of the settlement is that the rounds could be replaced with like rounds that have COPY on them or the costs of the silver refunded to the claimant based upon the spot price of silver "on the day the round was received by the Settlement Administrator" (i.e. not the day the Silver round was purchased).
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
I'm also curious if the lead plaintiff has returned his silver rounds? >>
I am getting my rounds marked "copy" and returned to me.
If you read the pages listed, this is pretty much standard language for a settlement agreement. It is saying that the settlement agreement cannot be used as evidence against them, just in case the settlement some how does not go through. The judges ruling denying the motion to dismiss can still be referenced in future case, and that was based on the HPA.
As for the Settlement, the defendant offered as much as we could have reasonable gotten at trial, so of course we are going to settle.
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<< <i>
<< <i>Getting back to the "Action" and it's results, specifically outlined in the Settlement Agreement, with regard to any and all legal precedents it sets, two image from the Settlement:
Draw your own conclusions but leave any HPA discussions out of the conclusion since it's not a part of the settlement of the case.
Settlement of the case basically amounts to the defendants saying, "Here's some money now go away" and the Plaintiffs saying "Sounds Great!".
Monies amount to a grand to the lead plaintiff and 110 grand to the attorney's.
Additional monies would amount to the postage and handling repaid to anybody that cared to send the Silver Rounds back to Westminster Mint. A provision of the settlement is that the rounds could be replaced with like rounds that have COPY on them or the costs of the silver refunded to the claimant based upon the spot price of silver "on the day the round was received by the Settlement Administrator" (i.e. not the day the Silver round was purchased).
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
I'm also curious if the lead plaintiff has returned his silver rounds? >>
I am getting my rounds marked "copy" and returned to me.
If you read the pages listed, this is pretty much standard language for a settlement agreement. It is saying that the settlement agreement cannot be used as evidence against them, just in case the settlement some how does not go through. The judges ruling denying the motion to dismiss can still be referenced in future case, and that was based on the HPA.
As for the Settlement, the defendant offered as much as we could have reasonable gotten at trial, so of course we are going to settle. >>
Oh, so you admit that it was all about the money that you could suck out of the Westminster Mint?
Thank You for admitting that.
The name is LEE!
<< <i>
<< <i>
<< <i>Getting back to the "Action" and it's results, specifically outlined in the Settlement Agreement, with regard to any and all legal precedents it sets, two image from the Settlement:
Draw your own conclusions but leave any HPA discussions out of the conclusion since it's not a part of the settlement of the case.
Settlement of the case basically amounts to the defendants saying, "Here's some money now go away" and the Plaintiffs saying "Sounds Great!".
Monies amount to a grand to the lead plaintiff and 110 grand to the attorney's.
Additional monies would amount to the postage and handling repaid to anybody that cared to send the Silver Rounds back to Westminster Mint. A provision of the settlement is that the rounds could be replaced with like rounds that have COPY on them or the costs of the silver refunded to the claimant based upon the spot price of silver "on the day the round was received by the Settlement Administrator" (i.e. not the day the Silver round was purchased).
I would be curious as to how many folks that purchased the subject Silver Rounds between March 7th, 2008 and (when ever the Class Period Ends) will actually return their silver rounds for replacements? With Silver at $16 today, I'm curious as to how many folks will return a Silver Round they purchased for $30, will step up and return this for a replacement round whose value is at $18 today?
I'm also curious if the lead plaintiff has returned his silver rounds? >>
I am getting my rounds marked "copy" and returned to me.
If you read the pages listed, this is pretty much standard language for a settlement agreement. It is saying that the settlement agreement cannot be used as evidence against them, just in case the settlement some how does not go through. The judges ruling denying the motion to dismiss can still be referenced in future case, and that was based on the HPA.
As for the Settlement, the defendant offered as much as we could have reasonable gotten at trial, so of course we are going to settle. >>
Oh, so you admit that it was all about the money that you could suck out of the Westminster Mint?
Thank You for admitting that. >>
Oh, nice try but I did not say it was about the money, you are reading into it words that I did not write. When I said "the defendant offered as much as we could have reasonably gotten at trial," I was talking about injunctive relief, the marking of copy, and the refund option. As a matter of fact if we did go to trial my incentive award would have most certainly been higher, as would the attorney fees. In class action lawsuits, the further the case goes the more of an incentive award the lead plaintiff is entitled to.
BTW - If it was about the money, I would happily admitted it, because there would be nothing wrong with that. I have been very clear about my motives, and you can read all about them in this thread, look where I answer D Carr's questions.
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