The Federal Trade Commission (FTC) published the “Final Rule of its Rules and Guidelines” for enforcing the Hobby Protection Act (16 CFR Part 304) to include the provisions of the Collectible Coin Protection Act (Pub. L. 113-288) that was signed into law by President Obama on December 19, 2014.
It is the job of the FTC to provide support to enforce the Hobby Protection Act. When updates are made to the law, such as the Collectible Coin Protection Act, the FTC is required to figure out how they will implement the law. Executive agencies, like the FTC, is required to write regulations that conform with the law and legal precedent, announce them to the public, allow for public comment, and then publish the file rule.
On October 14, 2016, the final rules that the FTC will use to enforce the Hobby Protection Act was published in the Federal Register (81 FR 70935). Since this is the final rule, the section begins with explanations and commentary about the information received from the public comments.
What appears to be troubling is that the FTC rejected comments from noted numismatists that there should be a rule to cover the manufacturing of fantasy coins. Fantasy coins are those that were not manufactured by the U.S. Mint. An example cited was the manufacturing of a 1964-D Peace Dollar “FANTASY” since the coins were never officially manufactured. Although the coins were struck, they were considered trial strikes and subsequently destroyed.
Daniel Carr is a mechanical engineer who also studied computer graphics and later turned it into an art career. He had entered U.S. Mint sponsored competitions for coin designs that have been used on commemorative coins. Carr is the designer of the New York and Rhode Island state quarters and his design was used as the basis of the Maine state quarter.
2000-P New York quarter with Daniel Carr’s autograph on ICG label
2000-D New York quarter with Daniel Carr’s autograph on ICG label
Carr had bought surplus coining machines from the Denver Mint, repaired them, and had been using them to strike fantasy coins. One of his fantasy coins was the 1964-D Peace Dollar. Over 300,000 coins were struck in 1965 at the Denver Mint anticipating its circulation only to be destroyed after congress disapproved of the way the Mint was allegedly handing the program. Some believe that some coins have survived, much like the 1933 Saint-Gaudens Double Eagle. But like that famed double eagle, it would spark a legal battle if a coin would surface.
Capitalizing on the story, Carr struck his own versions with varieties, errors, and finishes. He sold them as fantasy coins but were not marked in any way. Advertising and writings from Carr explicitly call them fantasy coins, but what about future sellers?
FTC claims it is not necessary to amend the rules “because it can address specific items as the need arises” The FTC further states they have “addressed whether coins resembling government-issued coins with date variations are subject to the Rules.” Using past precedent, the FTC concludes “such coins should be marked as a ‘COPY’ because otherwise they could be mistaken for an original numismatic item.”
Many numismatic industry experts who have seen how Chinese counterfeits have damaged the hobby, wanted the FTC the rule codified so that it would force someone like Daniel Carr to mark his fantasy pieces appropriately. Carr continues to manufacture fantasy pieces based on designs of actual coins changing the date. Recently, Carr has produced Clark Gruber fantasy products with modern dates without the word “COPY” imprinted on the coin.
While Clark Gruber gold pieces were never legal tender, there were allegedly pattern pieces of Presidential dollars that included the required inscriptions and included a denomination. There was no indication on the coins that they were not legal tender even though Carr marketed them as medallions.
The purpose of the CCPA was to prevent counterfeit coins from misleading the public. Carr has allegedly jumped over that line joining the Chinese counterfeiters in an effort that will mislead the public with the apparent blessing of the FTC.
Sources I contacted were not encouraged by the FTC action. It was noted that when Carr’s 1964-D Peace fantasy dollars were reported, the FTC did not take action.
The new rules go into effect on November 16, 2016.
NOTE: Normally, I will include links and other details to the items I write about so you can read more. However, because it is my opinion that what Carr has done violates every spirit that the Hobby Protection Act stands for, I will not provide links to dignify his efforts. I wholeheartedly believe that if similar coins were brought into the United States from abroad, especially from China, the FTC would act to protect our rights under the Hobby Protection Act. However, since Carr previously provided art to the U.S. Mint, it is likely the government may be trying to spare its own embarrassment.
Here we go again… the government want to take your ancient coins away from you.
This is different from other conspiracy theories because since there is no mechanism for them. Here, foreign governments are working in collusion with the United States Department of State Cultural Property Advisory Committee (CPAC). The problem with CPAC is that it is not a real committee. They are largely a rubber-stamp part of the State Department’s Bureau of Educational and Cultural Affairs kowtowing to any foreign government who feels that items found in their country have been stolen from regardless of the evidence. This includes common ancient coins or coins that were removed from circulation long before the existence of the 1970 UNESCO Convention that created this situation.
If you want to read a more extensive discussion on the problems facing collectors of ancient coins, read my post “An ancient dilemma” from 2014.
The information comes from the Ancient Coin Collectors Guild (ACCG). Even if you are not a collector of ancient coins you should appreciate that the problems with governments wanting to stop your hobby. If they go after the ancients, what is to prevent these countries from trying to recall obsolete money? We need to support the ACCG and the community to prevent overreach by foreign governments and a committee who does not care what the coin collectors think.
Here’s the current issue as outlined by ACCG Executive Director Peter Tompa
Dear Fellow ACCG Member:
The State Department’s Bureau of Educational and Cultural Affairs and its Cultural Heritage Center have announced a comment period for a proposed extension of a Memorandum of Understanding (MOU) with Cyprus. See https://www.federalregister.gov/articles/2016/08/10/2016-19018/notice-of-meeting-of-the-cultural-property-advisory-committee
The U.S. Cultural Property Advisory Committee will review these comments and make recommendations based upon them with regard to any extension of the current agreement with Cyprus.
According to U.S. Customs’ interpretation of the governing statute, import restrictions authorized by this MOU currently bar entry into the United States of the following coin types unless they are accompanied with documentation establishing that they were out of Cyprus as of the date of the restrictions, July 16, 2007:
1. Issues of the ancient kingdoms of Amathus, Kition, Kourion, Idalion, Lapethos, Marion, Paphos, Soli, and Salamis dating from the end of the 6th century B.C. to 332 B.C.
2. Issues of the Hellenistic period, such as those of Paphos, Salamis, and Kition from 332 B.C. to c. 30 B.C. (including coins of Alexander the Great, Ptolemy, and his Dynasty)
3. Provincial and local issues of the Roman period from c. 30 B.C. to 235 A.D.
You may ask, why bother to comment—when Jay Kislak, CPAC’s Chairman at the time, has stated that the State Department rejected CPAC’s recommendations against import restrictions on Cypriot coins back in 2007 and then misled both Congress and the public about its actions? And isn’t it also true that although the vast majority of public comments recorded have been squarely against import restrictions, the State Department and U.S. Customs have imposed import restrictions on coins anyway, most recently on ancient coins from Bulgaria?
Simply because, our silence allows the State Department bureaucrats and their allies in the archaeological establishment to claim that collectors have acquiesced to broad restrictions on their ability to import common ancient coins that are widely available worldwide. And, of course, acquiescence is all that may be needed to justify going back and imposing import restrictions on more recent coins that are still exempt from these regulations.
Under the circumstances, please take 5 minutes and tell CPAC, the State Department bureaucrats and the archaeologists what you think.
How do I comment? Go to https://www.federalregister.gov/articles/2016/08/10/2016-19018/notice-of-meeting-of-the-cultural-property-advisory-committee to submit short comment just click on the green box on the upper right hand side of the above notice that says “submit a formal comment” and follow their directions.
If you are having trouble, go to the Federal eRulemaking Portal (http://www.regulations.gov), and enter Docket No. DOS-2016-0054 for Cyprus, and follow the prompts to submit comments. What should I say? The State Department bureaucracy has dictated that any public comments should relate solely to the following statutory criteria:
- Whether the cultural patrimony of Cyprus is in jeopardy from looting of its archaeological materials;
- Whether Cyprus has taken measures consistent with the 1970 UNESCO Convention to protect its cultural patrimony;
- Whether application of U.S. import restrictions, if applied in concert with similar restrictions by other art importing countries, would be of substantial benefit in deterring a serious situation of pillage and that less drastic remedies are not available;and,
- Whether the application of import restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.
(See 19 U.S.C. § 2602 (a).) Yet, collectors can really only speak to what they know. So, tell them what you think within this broad framework. For instance, over time, import restrictions will certainly impact the American public’s ability to study and preserve historical coins and maintain people to people contacts with collectors abroad. (These particular restrictions have hurt the ability of Cypriot Americans to collect ancient coins of their own culture.) Yet, foreign collectors—including collectors in Cyprus—will be able to import coins as before. And, one can also remind CPAC that less drastic remedies, like regulating metal detectors or instituting reporting programs akin to the Treasure Act and Portable Antiquities Scheme, must be tried first. Finally, Cyprus is a member of the European Union, so why not allow legal exports of Cypriot coins from other EU countries?
Be forceful, but polite. We can and should disagree with what the State Department bureaucrats and their allies in the archaeological establishment are doing to our hobby, but we should endeavor to do so in an upstanding manner. Please submit comment just once, before the deadline on September 30, 2016.
Thank you for your help,
Peter K. Tompa,
Ancient Coin Collectors Guild
Earlier this months the Third U.S. Circuit Court of Appeals ruled on the procedural appeal that the ten 1933 Saint-Gaudens Double Eagle gold coins did not have to be returned to the Langbord family.
One of the ten 1933 Saint-Gaudens $20 Double Eagle gold coins from the Longbord Hoard confiscated by the U.S. Mint
This is a case that has been ongoing for ten years following the “discovery” of ten 1933 Saint-Gaudens $20 gold Double Eagle coins by Joan Langbord, the daughter of Philadelphia jeweler Israel Switt. Following the auction in 2002 of the only legal Double Eagle for a single coin record of $7,590,020 (since broken), Langbord claims that she found ten 1933 Double Eagles in a safe deposit box where Switt stored the coins.
Langbord reported the find to the Mint to “attempt to reach an amicable resolution of any issues that might be raised.” When Langbord gave the coins to the Mint to be authenticated, the Mint confiscated the coins. Langbord retained Barry H. Berke, the attorney who represented the plaintiffs in the case that resulted in the sale of the King Farouk coin.
1933 Saint Gaudens Double Eagle (obverse).
Last sold for $7,590,020 in 2002.
Reverse of the iconic 1933 Saint Gaudens
$20 Double Eagle gold coin
After adding her sons Roy and David as plaintiffs to protect the property since Joan is elderly, the case is finally heard in July 2011. The court handed down an unanimous decision against the Langbords. The coins are moved to the United States Bullion Depository at Fort Knox, Kentucky.
Langbords appeal the trail to the Third Circuit where a three-judge panel vacated the forfeiture and order the government to return the coins.
The government appeals and asks that the return order be vacated in order to appeal the decision. Rather, the Chief Judge of the Third Circuit will stay the order and ruled that the appeal will be en banc, meaning that the appeal will be heard before the entire bench of judges.
In this round the government did not file in the proper time-frame and the Longboards appealed all rulings. The Third Circuit order the return of the coins but the government appealed the ruling again.
On August 1, 2016, in a 9-3 vote, a full Third Circuit panel of judges ruled that they agreed with the government who argued that forfeiture laws were not applicable because the coins were already U.S. property and could only be surrendered. The majority also ruled against granting a new trial noting that the errors of the 2011 trial were harmless even though a previous three-judge panel ruled differently.
In writing the dissenting opinion, Judge Majorie Rendell said that the majority based its opinion “mainly on its buy-in to the Government’s audacity—the Government’s say—so that it owned the 1933 Double Eagles and had no intention of forfeiting them.” She noted that the Civil Asset Forfeiture Reform Act was designed to prevent the government from forcefully seizing civilian property and that the ruling sets an “incorrect and dangerous precedent.”
A part of the government’s argument that is disturbing is that the they claim the Langbords are “the family of a thief” and should not benefit. Switt was never charged or convicted of a crime. While there is significant circumstantial evidence that Switt was the private seller of the coins and probably worked with the Mint’s cashier, his role has not been legally proven in any of the cases regarding any of the Double Eagle coins. Although this sounds like a legal arm-twist, it is important not only for this case but for any possible case the government can levy against any citizen. It is not right, fair, or legal and a violation of rights.
Berk told Reuters, “The Langbord family fully intends to seek review by the Supreme Court of the important issue of the unbridled power of the government to take and keep a citizen’s property.”
It is likely that the case will be filed to the U.S. Supreme Court for hearing in its next session beginning in October. Hopefully by then a ninth justice will be seated before hearing this case.
Image courtesy of U.S. Mint
If you have not visited Etsy, you will find a shopping site where you can find unique items that are not available elsewhere. Most of the sellers on Etsy sell handmade designs, vintage items, repurposed vintage items, supplies, and unique low volume goods. It would not be farfetched to call Etsy an Internet craft fair and a neat place to go shopping.
One of the more interesting items on Etsy are coin jewelry. Coin designs are themselves a form of art but can become ordinary when repeated over millions of coins. Take a meaningful design and add it to a bezel, attach it to a pendant, or hammer it into a ring and these artists take the coins to the next level.
Many of these artists will take requests for the type of coin for their creations. Some will even let you send a special coin or a coin they cannot obtain to create your design.
A quick search on Etsy for coin jewelry found over 100,000 different jewelry items including bracelets, rings, earrings, bracelets and more. Aside from the different types of jewelry the artists will also use coins from all around the world including the United States, United Kingdom, Canada, Norway, and more.
Resin ear rings made by InspiringFlowers using Roosevelt dimes
1996 Half Dollar Ring by LuckyLiberty
Hummingbird cut from a Trinidad and Tobago penny by SawArtist
Click on the image to visit artist’s store
Coin jewelry hunters may be unknowingly accessories to a crime. According to an article in The Straits Times, it is illegal to make jewelry using coins from Singapore.
Like many other nations, Singapore takes pride in the art on their coinage. Aside from being their means to promote commerce, they are used to represent their culture and society. However, the Monetary Authority of Singapore (MAS), the Singapore equivalent of the U.S. Treasury Department, has said that under Singapore’s Currency Act, it is illegal to “mutilate, destroy or deface” their money. Offenders can be fined up to $2,000.
If you search for “Singapore coin jewellery” (the British spelling of “jewelry”) on Etsy, you will find around 200 different jewelry items returned as part of the search. It is common to see Singapore flower series coin or older coins that featured seahorses.
Painted Singapore Dollar coin ring by Monedus
1990 Singapore Horse bullion coin 1/20 oz. in a ring by BritanniaJewelry
Pendant made using a cutout 1979 Singapore coin
Click on the image to visit artist’s store
None of these artists are based on Singapore
While United States law allows for people to use coins for jewelry or other purposes as long as there is no attempt to use them as legal tender currency (18 U.S.C. § 331), this might not be the same for other countries. Although European laws are similar to those in the United States, there is some question as to whether the laws of Canada and Australia can be interpreted to have the same restrictions as Singapore.
When I asked an attorney, he questioned whether an international buyer would convicted of a crime. We both agreed that if you buy jewelry with an international coin, leave it home if you plan to visit that country.
Etsy was asked for a comment but attempts to contact them via email has not been answered.
All images are courtesy of their respective artists on Etsy.
Once again the U.S. Mint is saving us coin collectors from ourselves and preventing a legally obtained collectible from being owned by the collecting public. In a canned statement that had to have been copied from previous canned statements, U.S. Mint Principal Deputy Director Rhett Jeppson said that the agreement to return the only known version of a 1974-D Aluminum Lincoln cent pattern “is not only good for the integrity of the coin collecting hobby but for the integrity of the government property and rule of law.”
1974-D Experimental Lincoln cent pattern made using an aluminum planchet (J2151)
In 1974, as part of the effort to find a composition that would replace the 95-percent copper planchet for the one-cent coin that was used at the time, the U.S. Mint struck 1.4 million as patterns with the intent on destroying all of the coins struck when completed.
Congress did not like the concept fearing that their silver color would confuse them with other coins. Additionally, the aluminum composition could not be detected in vending machines nor would show up on an x-ray if swallowed. The coins were melted down.
Patterns that were struck for this test were made entirely in Philadelphia.
Which brings us to the story of the 1974-D cent pattern in this story.
Harry Lawrence who retired as deputy superintendent of the Denver Mint in 1979 owned this coin. Lawrence died in 1980. Harry’s son, Randall, discovered the coin in 2013 after moving to La Jolla from Denver and selling a bag of his father’s old coins to Michael McConnell at the La Jolla Coin Shop.
McConnell had the coin graded by Professional Coin Grading Service as MS-63 and determined it to be a genuine pattern. They were going to offer the coin for auction when the government stepped in to stop the sale and demanded its return.
Michael McConnell (left) and Randy Lawrence (right) returned the rare 1974-D penny made from aluminum back to the U.S. Treasury Department Thursday afternoon. — Nelvin C. Cepeda
There is one caveat to this story: there is no record of Denver ever striking such a coin. According to Randy Lawrence, the coin was given to his father when he retired from the Denver mint.
When Lawrence and McConnell sued the government to end the demand order, it is reported that Alan Goldman, former interim Mint director who headed the aluminum cent project, speculated in his deposition that the coin might have been made as part of a practical joke. Goldman allegedly named a suspect whose name was not released but is reported to be deceased.
The ensuing lawsuit lasted about two years and was settled today with McConnell returning the coin to the U.S. Mint on March 17, 2016.
The precedence this ruling is more dangerous for the hobby than people think. The most important issue is that it puts into jeopardy the status of the five 1913 Liberty Head nickels. Created under allegedly similar circumstances, the U.S. Mint has no record that these coins were ever produced. Although the government has tacitly agreed not to pursue that coin, there may be a time when someone with a more parochial view might use this situation to recover alleged chattel as property of the state.
Rulings like this will likely keep any surviving 1964-D Peace dollars hidden from the public. This will partially bury the history of turmoil in the coinage markets of the early 1960s. Hiding history is never good for anyone.
News out of Philadelphia that an three-judge appeals panel for the U.S. Court of Appeals for the Third Circuit has overturned a lower court’s ruling and order the U.S. Government to return the ten 1933 Saint-Gaudens Double Eagle gold coins originally seized by the government after being certified as genuine by the U.S. Mint.
The ten 1933 Saint-Gaudens Double Eagles confiscated by the government from Joan Lanbord, daughter of Israel Switt.
The original suit was filed in the U.S. District Court in Philadelphia by Barry H. Berke on behalf of Joan Langbord, the surviving daughter of jeweler Israel Switt, and her sons Roy and David. Berke is no stranger to these types of law suits. He represented the plaintiffs in the case that resulted in the sale of the Farouk coin in 2002. In July 2011, the jury returned a verdict declaring the coins to be government property.
The verdict left a lot of question about the legality of pattern coins. One example cited was the 1974-D Aluminum cent. However, on April 6, a federal judge in California ruled that the coin could have legally left the Denver Mint. This does not end the battle for the cent. All it does is dismisses the government’s claim for summary judgement against the plaintiffs Randall Lawrence and Michael McConnell.
1974-D Aluminum Cent (J2151)
This case is different since it is further along and about what was to be a circulating coin.
The ruling, written by Judge Marjorie O. Rendell,† centers around the government’s use of Civil Asset Forfeiture Reform Act of 2000 (CAFRA). CAFRA was passed as a “eact[ion] to public outcry over the government’s too-zealous pursuit of civil and criminal forfeiture” and as an “effort to deter government overreaching.” The government said that the Langbords did not file their suit within the 90-day time period. However, the ruling says that it does not imply because “Congress has specifically enumerated theft or embezzlement of government property as one of the crimes to which CAFRA applies.” Since the government called the assets stolen and then ignored the Langbords’ claim for the government to return the coins, they did not prove that the assets were embezzled and CAFRA does not apply.
In the areas where CAFRA did apply, the government did not respond to the Langbords’ request for return of the assets within the 90-days required by law. “The Langbords are correct in urging that we reject these arguments. The Government was required either to return their property or to institute a judicial civil forfeiture proceeding within 90 days of the Langbords’ submission of a seized asset claim.”
The three judge panel concluded “he Langbords are entitled to the return of the Double Eagles.” The appeal overturns the lower court’s ruling and the Appeals Court “will remand for the District Court to order the Government to return the Double Eagles to the Langbords.”
This may not be the end of the story. The government can ask for a temporary stay of the order in order to file an appeal. At that point the government attorneys can either appeal the ruling by the three-judge panel to the full Appellate Court (a full 9 judge panel) or directly to the Supreme Court.
My opinion: considering how the government has behaved throughout the saga of these coins, I think they will try to appeal this ruling to the full Third Circuit. It drags the case out longer and allows the government to put its considerable heft against the the Langbords. I do not think the government will settle this suit in a similar manner that the King Farouk coin was settled. However, if I understand the procedures correctly, the Langbords can claim that the case has significant public interest and ask for it to be heard by the Supreme Court. The Supreme Court then will decide to hear the case or let it be heard by the Third Circuit first. Regardless, I think the next stop is the Supreme Court where the most fascinating story in U.S. numismatics will be settled.
Or will it?
† Judge Rendell was appointed by President Bill Clinton in 1997. She was also the First Lady of Pennsylvania during the term of her then husband Ed Rendell
(2003-2011). The Rendells have since “amicably separated
Image of the 10 Double Eagles courtesy of the U.S. Mint.
Image of the Aluminum cent originally from the Smithsonian Institute.
The Numismatic Crime Information Center is reporting that two suspects have been arrested for selling fake Suisse PAMP gold bars. The NCIC report is as follows:
PAMP Gold Ingot
Traveling Suspects Arrested
Two suspects have been arrested for selling fake Suisse Pamp carded gold bars (2.5gm, 5gm,10gm and 1 ounce) at a coin shop in Greenwood, Indiana. Search of the suspects vehicle revealed multiple identification cards, business and pamphlets from different coin shops and an additional 250 fake gold bars and coins. Based upon receipts located in the vehicle the suspects had been selling the fake gold to shops in Illinois, Kentucky, Tennessee and Indiana since September, 2014.
The suspects were driving a silver Ford Focus with Missouri license plates. The suspects are being held for Theft by Deception.
Western Union, IL
Second suspect was identified as Nelson Hernandez (No photo available) alias Benjamin Wade.
Anyone having been in contact with either of these subjects should contact:
Doug Davis, 817-723-7231, Doug@numismaticcrimes.org
If you have information, please contact Doug Davis. Let’s keep the hobby for both collectors and investors safe!
After all the U.S. Mint has tried to do to make itself more appealing to the collecting community, they are now reverting to their old form and attacking a collectors for owning a coin they claim is “contraband.”
Experimental 1974-D Lincoln cent made struck on an aluminum planchet
The argument is over a 1974-D Lincoln cent made of aluminum that was to be auctions by Heritage Auctions during the April 2014 Central States Numismatic Society auction. Rather than being auctioned, the U.S. Mint requested its return as government property even though it was reported that no records of the coin’s production exist.
According to an updated report appearing in Coin World, the coin was given to Harry Lawrence, a former Denver mint assistant superintendent, as part of a retirement gift in 1979. Upon his death, his possession were willed to his son Randall Lawrence.
Randall Lawrence and Michael McConnell, a San Deigo-area dealer working with Lawrence, consigned the coin to Heritage in hopes to be able to donate at least $100,000 from the sale to charities helping the homeless in San Deigo. Heritage had estimated the coin to be worth $250,000. Lawrence and McConnell are asking the federal court to determine the coin’s ownership.
U.S. Mint does not have records of the aluminum cent being struck in Denver. There are records of 1 million coins struck in Philadelphia. Nearly all were destroy.
The U.S. Mint’s mishandling of their own records are legendary. Some of the more famous coins that have escaped official record include the 1933 Saint-Gaudens double eagle and the five 1913 Liberty Head nickels. Numismatic researcher Roger Burdette has documented significant gaps in the way the U.S. Mint has historically mishandled their own documents. Even in recent years, the U.S. Mint has played fast-and-loose even with required documentation during previous director’s term because the narrative of the annual report would make the U.S. Mint’s performance look less than stellar.
Unfortunately for the U.S. Mint, Coin World reporter Paul Gilkes was able to interview former Denver Mint employee Benito Martinez “who said he personally struck fewer than a dozen of these coins as a die setter on aluminum planchets provided by the Philadelphia Mint.” Martinez said that these coins eventually made its way to the U.S. Mint headquarters in Washington, D.C.
Aside from the bad precedent this would create for all pattern coins and trial strikes, this has the potential to undo whatever good will the U.S. Mint has built with the collecting public in the last few years. Problems with the Kennedy gold coin not withstanding, the work that the U.S. Mint has done after the departure of Director Edmund Moy to build a more collector-friendly can be undone by continuing this fight.
Maybe it is time that the lawyers at the U.S. Mint and the Department of the Treasury stop trying to flex its muscles and realize the goodwill that would be created by changing policies and attitudes. After all, like all lawyers it is possible to interpret the law in a manner that would be more helpful while protecting the U.S. Mint and the U.S. government.
Image courtesy of Coin World.
The Ninth Circuit Court of Appeals upheld the dismissal of the antitrust class action suit against eBay for its policy for listing certified coins for sale.
The story begins in 2007 when eBay began to set standards for listing coins on its site. As part of its decision as to which coins could be listed as graded with their grade as part of the listing, the policy was created that grading services had to have been rated good or better in the 2006 Grading Services Survey performed by Professional Numismatic Guild and Industry Council for Tangible Assets.
After a lot of protest from the numismatic community, by 2008, eBay changed their policy for listing coins to require coins worth more than $2,500 to be graded and listings that mention grades be graded by an approved grading service. To become an approved grading service the company has had to grade 50,000 pre-1956 coins, provides an online population report, has three professional graders on staff with at least one a member of the Professional Numismatic Guild, provide a written guarantee, encase coins in a tamper resistant holder with anti-counterfeiting measures, and provide an online serial number verification service.
Initially, only coins graded by Numismatic Guarantee Corporation and Professional Coin Grading Service qualified under these rules. Shortly before the ruling was to take effect, ANACS and Independent Coin Graders make the necessary adjustments to have coins in their holders qualify for listing as graded on eBay.
Universal Grading Service (UGS) was a nascent New Jersey-based grading service decided to file an antitrust suit eBay, the American Numismatic Association, then ANA President Barry Stuppler, and PNG claiming that the rules are preventing them from competing in the market. Their claim was that coins in their holders were allegedly banned by eBay claiming that by using the study, eBay was in collusion with the ANA and PNG to prevent them from participating in the market, an alleged violation of the Sherman Antitrust Act.
UGS initially filed the anti-trust case in the Eastern District of New York. The court, based in Brooklyn, determined that since eBay was the lead defendant and the service most impacted by the suit, New York was not the proper jurisdiction. The court ordered that the case be transferred to Northern District of California.
The case was move to the San Jose Division for the Northern District of California and assigned to Judge Ronald M. Whyte. In mid-2011, Judge Whyte granted motions (with prejudice) to dismiss the case against the ANA, PNG, and Barry Stuppler. That left only eBay as the lone defendant.
On January 9, 2012, Judge Whyte granted eBay’s motion to dismiss the case with prejudice. Judge Whyte noted that the case was flawed from the beginning and gave UGS every opportunity over two years to amend the case in order to prove their claim. Judge Whyte agreed with eBay that USG did not provide evidence that eBay violated the Sherman Antitrust Act or other associated laws.
UGS appealed to the Ninth Circuit Court of Appeals saying that Judge Whyte wrongly dismissed the claim and that they met their filing responsibility under the Sherman Antitrust Act and associated state laws. The three judge panel affirmed the Judge Whyte ruled properly and let the dismissal stand.
UGS, who has ceased operations, can appeal the case to the full Ninth Circuit asking for a review. When appealing a ruling to a full circuit court panel, all nine judges assigned to that circuit, including the members of the three-judge appellate panel, will hear the appeal. An attorney familiar with Federal Circuit Courts said that it is rare that a dismissal by a federal district judge that is upheld by an appeals panel will be selected to be heard by the full circuit. He did note that stranger things have come out of the Ninth Circuit and it could be possible that they would hear the case.
After the Ninth Circuit, the next step would the Supreme Court. Sources report that if the full Ninth Circuit refuses to hear the case or the dismissal is upheld, “there is no attorney in his right mind” that would file an appeal to the Supreme Court after two courts uphold a dismissal.
With this ruling, the Universal Grading Service is effectively dead and buried. Whatever the people behind UGS were hoping to get out of this case will not be realized.
One thing this ruling says is that the cost to entry the coin grading market is very high. The court affirmed that eBay can set the market rules and as one of the dominating venues for selling coins, a new grading service would have to meet eBay’s requirements in order to gain market acceptance. The difficult benchmark is to have graded 50,000 pre-1956 coins.
There appears no reason why pre-1956 was picked as the dividing line. For many, it would make sense to select pre-1965 to include all coins that are pre-clad coinage. Calls to eBay to obtain clarification about the policy have not been returned. Since eBay consulted with John Albanese, principal of Numismatic Consumer Alliance and Certified Acceptance Corporation (CAC), contacting him may be an option.
Interestingly, if eBay is to follow its policy to the letter, coins that received verification stickers from the CAC cannot be listed as part of the grade. Titles should not be allowed to indicate that the coins have been verified by CAC nor should the description. As far as I am concerned it would be acceptable for eBay to ban the designation of CAC verification as I am not a fan of the service.
Which raises a thought: considering the CAC’s business model includes only coins certified by NGC and PCGS, and given Albanese’s past associations with both of those services, if the case was limited to eBay and Albanese/CAC would it have been more successful?
Fred and Wilma (not their real names) are friends who decided to celebrate their empty nest by taking a trip to the Mediterranean after dropping their youngest child off at college. Fred is what I respectfully call a hacker. He is a wizard programming computers and someone who I go to in order to understand some of the more esoteric aspects of computer exploits he researches. In his spare time, Fred plays with his computers and tinkers with electronics. Fred is also known as an overgrown boy scout. He is contentious about his work, children, and the activities he is involved with. Fred is probably the most honest person I know.
Fred is not a coin collector and has no interest in collecting coins even though he does own the 2004 Thomas Edison commemorative coin and the 2005 Albert Einstein 2 Shekel proof coin from Israel because these are two people he admires. On many occasions, Fred has said that he did not understand what I saw in collecting coins. Even after showing him my original Lincoln cent folder with coins I have found in change dating back to when I started collecting, he did not understand the lure of the chase.
While sitting on a beach along the Mediterranean, Wilma started to dig in the sand around a sleeping Fred to have fun at his expense. After she dug nearly two feet down, Wilma unearthed metal object that she originally thought was trash. After waking Fred and watching him roll into her newly dug hole, Fred brushed himself off and looked at what she found. A trip to the water to rinse off the items to find three ancient coins and a shell. The way it was described to me was that the coins were sitting in the shell as if it were a change holder. They dug some more and found three more coins. To some degree, he began to understand the thrill of the chase.
With the help of the hotel concierge, Fred and Wilma found a coin dealer who spoke English to ask about the coins. After talking with the dealer they found that the coins were common and would only be worth the equivalent of a few dollars. Undeterred, the coins were placed in a small bag and throw in the bottom of their carry on luggage as souvenirs and continued with their vacation.
A few days later, Fred and Wilma packed their bags and went to the airport to return home. At their host country’s departure screening, Fred was asked if there was anything to declare. Fred, being an overgrown boy scout, declared everything—even things he did not have to declare. As the officers were inspecting the items on the table, one picked up the bag with the coins and asked about coins. Fred showed the officer the written estimate from the dealer thinking that would resolve any issue.
According to Fred, the officer took coins and the estimate to another officer he described as having more decorations on his uniform. This higher ranking officer looked at the coins and paper while discussing the situation in their native language. After a moment, Fred became concerned and Wilma became nervous.
Another officer walked over with the higher ranking officer and acted as a translator as it was explained to Fred that the coins were “cultural antiquities” and would be confiscated. Fred was not happy but he accepted the situation until the translator said that Fred and Wilma would be detained while the officials investigated. They were allowed to gather their luggage and were escorted to a nearby room.
After waiting for an hour, another official came into the room and spoke to Fred and Wilma in English. Fred explained how he obtained the coins and why he was taking them home. After the official started questioning them as if they were criminals Fred asked to speak with the United States Embassy.
Fred and Wilma were escorted by local police to two separate facilities to be incarcerated pending an investigation. The facilities were in separate parts of town since these were not co-ed accommodations. They waited two days before seeing anyone other than the guards.
Two days later, both were escorted to a local judge and said they were being charged with trying to smuggle antiquities out of the country. An attorney was appointed to represent them. The attorney did not speak English and only wanted them to plead guilty for a three-year sentence. Thankfully, there was an American in the courtroom who told the attorney that he would contact the U.S. Embassy and not to plead on the case.
The next day, someone from the Embassy was able to have Fred and Wilma released to their custody, recovered their luggage, and let them stay in the embassy while trying to resolve the situation.
Obviously, the embassy accommodations were better than what they had at the local jail. Fred described the embassy staff as very nice including the natives who worked non-diplomatic jobs. Unfortunately, they could not leave the embassy since they were technically under house arrest. Although it was a gilded cage it was still a cage.
It took nine days to resolve the issue which Fred was told was lightning speed for that country. The coins were left in the country they were visiting, which Fred offered to do at the airport when confronted by the officials. They were driven to the airport by a U.S. military driver and escorted to the screening area by a member of the diplomatic staff who ensured their passports were returned and that they were allowed to board the plane.
The plane landed in a more friendly country where Fred and Wilma were met by local and U.S. officials for a debrief. Although the debrief was friendly, it did come after a stressful period in another country and lasted a few hours. Eight hours after landing in London, Fred and Wilma was en route back to the United States.
The country where this incident occurred is allegedly friendly with the United States but that did not stop the officials at the airport from treating them with suspicion over the possession of a few common ancient coins. Based on Fred’s description of the coins, I asked a dealer who said that $20 would be an average retail price for the coins. When asked if Fred wanted to buy similar coins, Fred could not decline fast enough!
I have written several posts about the impact of the Convention on Cultural Property Implementation Act (CPIA; 19 U.S.C. §§ 2601 et seq.) and the potential for foreign countries to use Memoranda of Understanding that the State Department’s Cultural Property Advisory Committee (CPAC) agrees to without considering citizen comments. The CPAC has said that the collateral issues raised by the comments are baseless. Fred can tell them otherwise.
Fred said that the embassy would not answer questions about what happened. Neither did the government officials during their layover in Europe. He was told that they should be thankful that this “only” lasted two weeks because it could have taken two months or even two years to resolve.
Next time the Ancient Coin Collectors Guild (ACCG) asks for assistance in addressing a call for comments from the CPAC regarding a foreign country’s MOU request, please remember the plight of Fred and Wilma. Although their ordeal lasted “only” two weeks, the next person may not be as lucky and find themselves in the jail of a country whose laws are far less humane than the United States.
Image of the ancient coins courtesy of NGC
. These are not
the coins the story is about.