Case Dismissed: eBay’s coin listing policy does not violate anti-trust laws

eBay LawsuitThe 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?

The law of unintended consequences

Ancient CoinsFred 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.

What is Shepherd really up to?

I know I have not been writing a lot as of late. Those of us in the Washington, D.C. area know the problems that sequestration has caused on government agencies. It might take another month before we regain a rhythm that will allow me to plan my time better. I have a nice To-Do list of stories I want to post including four book reviews and a few iPhone apps that are interesting.

I also do not want to use this blog as a campaign vehicle because that would be boring for you to read and for me to write. But when something as big as the most recent news comes out and I am asked for a comment, I have no choice but to use this blog to answer the many email inquiries once so we can get on with life.

Contemplation of Justice by James Earle Fraser, outside of the U.S. Supreme Court, Washington, DC

Contemplation of Justice by James Earle Fraser, outside of the U.S. Supreme Court, Washington, DC

Yesterday, the latest edition of Coin World began to appear in mailboxes. I knew this when I received several email notes about the article describing the amended lawsuit by former American Numismatic Association Executive Director Larry Shepherd. I opened the digital version of Coin World (the article is not online, yet), read the article with my mouth open, and found a link at the end of the story where you can download the amended complaint. I downloadedand read the amended complaint. [PDF]

The amended complaint is shocking and salacious. For those not familiar with the law and read that Shepherd is accusing the ANA of being a Racketeer Influenced and Corrupt Organization (RICO; 18 U.S.C. Chapter 96), it makes it look like the ANA is being compared to any number of organized crime figures you might have read about in the newspapers. Even though the RICO statutes were written to fight organized crime, using it is a common tactic by plaintiff lawyers to scare the defendants they are suing.

In order for a RICO charge to be accepted by the court, Shepherd and his lawyers will have to prove that a person as a member of an enterprise or the enterprise itself has committed to of 35 different crimes (18 U.S.C. § 1961). The crimes that Shepherd is alleging that the ANA has committed are racketeering, theft, and fraud.

Racketeering sounds like an ominous charge. Racketeering is a crime when two or more people conspire to fraudulently solve a problem. Shepherd alleges that a few employees of the ANA and members of the Board of Governors made up stories about Shepherd in order to find a way to relieve him of his duties for cause so they can invalidate his contract. The stories are salacious in nature and constitute Shepherd’s accusation of defamation that allows him to attach others to the case to show that there were more than two people involved.

The theft charge is from the guilty plea by former collections manager Wyatt Yeager. In January 2012, Yeager plead guilty to stealing items from the ANA Money Museum worth nearly $1 million. Yeager was sentenced to 27 months in a federal prison, two years of supervised probation, and ordered to pay restitution to the ANA.

With the theft charges already verified by a criminal court, Shepherd has to prove that the ANA committed fraud and at least two of the co-defendants conspired to fraudulently have him dismissed to resolve whatever issues the co-defendants perceived hurt the ANA. That would prove the case under RICO and hold the co-defendants and the ANA liable for Shepherd’s dismissal.

If you decide to read the pleading please remember that it is one side of the story. While the accusations are salacious and disturbing, we have not heard from the ANA or the co-defendants. This is a stark contrast to how they handled Shepherd’s dismissal when they could not stop talking. However, the ANA has a new general counsel who may be a little more cautious than the previous general counsel. The previous general counsel, Ron Sirna, is a co-defendant on this lawsuit.

Shepherd’s charges against the ANA and the co-defendants are disturbing. In fact, the nature of the salacious accusations is disturbing. If there is any truth in these accusations, those involved must be disciplined. Employees involved should be required to undergo remediation to keep their jobs or be dismissed if their action crossed the legal line.

According to the ANA Code of Ethics, members are required to “To base all of my dealings on the highest plane of justice, fairness and morality, and to refrain from making false statements as to the condition of a coin or as to any other matter.” Any member found to have be part of the racketeering that Shepherd’s lawsuit alleges, should be subject to an ethics review.

I was recently reminded of a quote from Inferno, the first part of Dante Alighieri’s epic poem The Devine Comedy: “The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis.” Therefore, members of the Board of Governors who did not “report any knowledge of waste, fraud, corruption or impropriety relating to the Association to all other Board members immediately upon learning thereof” (Code of Ethics, Section 12) should also be subject to an ethics review.

Shepherd is also not absolved from his part. While he may have a legitimate case, his timing is suspect. Why did he wait until the beginning of the election to amend his complaint laced with descriptions of salacious accusations at this time? Shepherd has to remember that while he makes accusations, it takes two to tango, which means that he may have had a part in acts that the pleading describes. It is also possible that Shepherd and his attorneys picked only examples that are in his favor. Until the ANA answers the charges levied by Shepherd we are left wondering what was left out?

The bottom line is that it is time to clean house. ANA members must elect a Board of Governors that will act more like a Board of Directors. People who will be professional, open, and work for the benefit of the ANA. The Board of Governors must treat the association like the $6 million business it is and set up programs for the professional office to support the association for the benefit of the members and not the benefit of the staff. While there may be a few people with issues, as described in Shepherd’s pleading, those few people are making the situation difficult for those who are doing a wonderful job.

If I am privileged to receive enough votes to be elected to the Board of Governors, I renew the promise I made previously that the first motion I will make will be to hire an executive management firm that has a verifiable background in helping non-profit organizations to review the entire ANA management structure. This stuff has to stop so that we can get on with the business of building our collections with all of the advantages the ANA can provide us, the members.

Image from Photographs from the Supreme Court’s Collection.

The Bogus Debate Over the $1 Trillion Coin

Obverse of the 2012 American Eagle Platinum Proof

Obverse of the 2012 American Eagle Platinum Proof

Over the last few weeks there have been a public drumbeat for the U.S. Mint to strike a $1 Trillion platinum bullion coin to resolve part of the country’s debt issues. Regardless of the story saying that this should be done, the concept is that the coin would be deposited in the Federal Reserve and it would instantly generate $1 Trillion in profit (seigniorage) that would then be deposited in the Treasury general fund.

Regardless of the side of the political spectrum you are in this topic, it will not work.

The United States Code (U.S.C.) is the codification of the laws of the United States. It is divided into 51 titles each covering one general topic. References to the law are made by providing the title number, followed by “U.S.C.,” then the section of the law. Subsections are added using parentheses after the section. All of the laws governing the U.S. Mint are under Title 31. When talking about what coins the U.S. Mint may be allowed to strike, you would find those laws in Title 31 Section 5112 (31 U.S.C. §5112).

First question is whether it is legal for the U.S. Mint to strike the $1 Trillion coin. Although there are as many answers as there are pundits, everyone points Title 31, Section 5112, paragraph “k” (31 U.S.C. § 5112(k)) that reads as follows:

The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.

This law was passed by congress under their authority in Article 1, Section 8 of the U.S. Constitution that says “The Congress shall have Power… To coin Money, regulate the Value thereof, ….” The law’s intent was to give the U.S. Mint the authority to issue the American Eagle Platinum Bullion and Platinum Proof coins. American Eagle Platinum coins have a $100 face value and sell for a premium over the market price of platinum and taking into consideration coin’s production cost. However, the law does not restrict the issuance of the platinum coin to the American Eagle program.

But is it constitutional? The argument from John Carney of CNBC says it is not by twisting a ruling by the Supreme Court. Carney cites the case Whitman v. American Trucking Assns., Inc. (531 U.S. 457 (2001)) in saying that “the Environmental Protection Agency rule making authority was too broad because Congress had failed to provide ‘intelligible principle’ to guide the agency.” Unfortunately, like a lot of people, Carney reads the headlines and not the majority opinion. In the majority opinion, Justice Antonin Scalia wrote the law “does not permit the Administrator [of the EPA] to consider implementation costs” which is against previous precedent because the Clean Air Act, which was under question, “often expressly grants the EPA the authority to consider implementation costs, a provision for costs will not be inferred from its ambiguous provision.”

In other words, the Supreme Court said that because there are conflicts in the law. The “intelligible principle” is that Congress cannot delegate partial authority over one part of a law where other parts have a requirement to consider other circumstances. In other words, the Supreme Court is saying that Congress has to be consistent in delegating its authority.

Could 31 U.S.C. § 5112(k) be interpreted in the same manner? It is possible for the Supreme Court to declare the law unconstitutional, but if they do so they would also have to rule that the law that allowed the U.S. Mint to create the 2009 Ultra High Relief Gold Coin unconstitutional. According to 31 U.S.C. § 5112(i)(4)(C):

… at the same time the Secretary in minting and issuing other bullion and proof gold coins under this subsection in accordance with such program procedures and coin specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.

Under both 31 U.S.C. § 5112(k) and 31 U.S.C. § 5112(i)(4)(C), the Secretary can authorize the U.S. Mint to strike any denomination platinum or gold coin with the value of $1 Trillion. Since there is no ambiguity or contradictions that would be able to use Whitman v. American Trucking Assns. as a precedence, the constitutionality should not be in question.

If the Secretary could mint and issue a $1 Trillion coin, then the Secretary could mint 17 such coins that could theoretically be used to pay off the country’s debt and give the country a positive balance for the first (and only) time since 1835 under President Andrew Jackson.

For discussion sake, let us say that the Secretary authorized the U.S. Mint to produce a $1 Trillion coin. Who is going to buy the coin?

If the concept is to use the profit (seigniorage) from the sale of the coin, whether it is made of gold or platinum, the coin has to be sold in order for there to be a profit. If the government would just deposit a $1 Trillion coin in the Federal Reserve, then where is the profit for the government? In order for a coin to become legal tender, it has to be bought from the government for at least its face value unless the law allows otherwise (see the American Eagle Bullion program and any of the commemorative programs). The U.S. Mint does not consider a coin to be legal tender until it receives an appropriate deposit of bullion or other forms of legal tender.

It this concept of legal tender that has been behind the government’s position that because the 1933 Saint-Gaudens Double Eagle coin was not paid for by a depositor (part of which is required in 31 U.S.C. § 5122), they are government owned coins (31 U.S.C. § 5121) and not legal tender. This concept has been upheld in the history of the 1933 Saint-Gaudens Double Eagles including the settlement over the Fenton-Farouk coin that sold for $7,590,020 with $20 going to “monetize” the coin.

Most recently, Judge Legrome D. Davis (U.S. District Court for Eastern Pennsylvania) confirmed the legal tender status of the 10 Double Eagles that Joan Langbord allegedly found in a box once owned by her father, infamous Philadelphia jeweler Israel Switt who is considered one of the central figures in the coins removal from the U.S. Mint. In Lanbord et al v. U.S. Treasury (Civil Action No. 06-5315), Judge Davis’s opinion cites past cases including the government’s own case against Israel Switt in 1934 for not forfeiting recalled gold and the previous return of 75 coins attributed to him. His opinion effectively confirms the U.S. Mint’s argument that once it creates a coin it is not legal tender and a liability on their balance sheet until the coins is bought.

If the coin is has to be paid for by a depositor before it can become legal tender, who will buy a $1 Trillion coin?

If the coin is just deposited with the Federal Reserve, there will be a $1 Trillion liability on the government’s balance sheet. In order to make the books balance, the Department of Treasury would have to sell debt bonds to make up the difference and that would add $1 Trillion to the national debt.

If the coin is bought by the Federal Reserve, then the Fed will have to pay $1 Trillion to the U.S. Mint for the coin reducing its overall working capital by $1 Trillion. Paying for a $1 Trillion that could not be used will just transfer the debt from the general treasury to the Federal Reserve. Since the Federal Reserve is in charge of managing the country’s money supply, the net effect will be to reduce the money supply by $1 Trillion that will cause the economy to shrink—any time you artificially remove money from the economy it will shrink which will also weaken the buying power of the U.S. dollar.

Transferring the debt away from the general fund might look good on paper but the effect will shrink the economy and cause more problems than even considering the constitutionality of doing this.

Unfortunately, this scheme was conjured by someone who did not think through the idea thoroughly.

Coin image courtesy of the U.S. Mint.

Stop me if you’ve heard this before: A fired Exec Director sues the ANA…

We knew it was coming. The American Numismatic Association issued a press release saying that they are being sued by former Executive Director Larry Shepherd.

“There is no merit to any of the allegations contained in the lawsuit, and it will be vigorously defended,” read the press release. “he ANA will make no further comment with regard to this pending litigation.”

This saga started on August 23, 2011 when the ANA announced that Shepherd was placed on administrative leave. After a month of speculation on why the ANA took this action, it was announced on September 28, 2011 that the ANA had “ended its employment arrangement with Larry Shepherd, as executive director, effective as of September 20, 2011. the vote of the Board to sever that relationship was unanimous.

Obviously, Shepherd did not take it well and issued a statement about his firing when the ANA responded but should not have. All has been quiet until a the Shepherd filed suit for wrongful termination.

This will make two dismissed executive directors who have sued the ANA. Even if the ANA wins their argument, the ANA loses because of the costs to defend itself. Just as the ANA was getting its financial footing back together, here is a potentially large, unexpected expense that has to be dealt with.

If the “third time’s a charm,” then the ANA has done well by hiring Jeff Shevlin. After meeting Jeff, I believe he really has the best interest of the ANA at heart and will do a great job.

Assessing the Lame Duck

On November 6, two weeks ago, the United States held an election and it resulted in basically no change in the political structure. President Barack Obama was re-elected, the House of Representatives is still being lead by the Republicans and the Senate by the Democrats. Leadership in both chambers should not change.

For numismatists, there will be one change in the 113th Congress with the retirement of Ron Paul (R-TX) who is currently Chairman of the Financial Services Subcommittee on Domestic Monetary Policy and Technology, the subcommittee that oversees the U.S. Mint. There will also be a change on the leadership of the Financial Services Committee itself with the retirement of Barney Frank (D-MA), the Democrats will have to select a ranking member. There is no speculation as to who will replace these two retiring representatives.

In retrospect, after worrying about Paul becoming chairman of this subcommittee, the Financial Services Committee was able to maneuver around Paul’s usual intransigence by taking on legislation at the committee level rather than rely on the vetting of the subcommittee. In fact, because of Paul’s attempted run for the presidency, his absence made it easy for the committee to bypass his subcommittee.

There is still work for the 112th congress to do aside from the “fiscal cliff” and sequestration. H.R. 5977, the Collectible Coin Protection Act, still needs to be acted upon. The Collectible Coin Protection Act will allow collectors, dealers, and grading services to bring legal actions that are much more effective, with much stronger remedies than previously existed. It will allow those harmed to work with the Justice Department to bring criminal actions, where appropriate.

Now that congress is in their lame duck session, the only way H.R. 5977 can become law, is to have it considered under suspension of the rules and force an up or down vote. In order for the bill to be considered under suspension of the rules will be to have members of congress co-sponsor the legislation. At the time of this writing, there are 11 co-sponsors from both sides of the aisle. I urge all of my readers to support H.R. 5977 by asking their representative to co-sponsor H.R. 5977. If you can help, read the information I wrote for the posting “ANACS Revelation Shows We Continue to Have Counterfeit Problems” that describes how to contact your member of congress.

Bibiana Boerio was nominate to be the Director of the U.S. Mint.

Another bit of business left for the lame duck Senate is the nomination of Bibiana Boerio to be the 39th Director of the United States Mint. Although there has been no report of problems with her nomination, the partisanship battles in the Senate could cause a senator to threaten a filibuster to put her confirmation on hold. If Boerio is not confirmed by the final adjournment of the 112th Congress, President Obama will have to resubmit her nomination to the 113th Congress after it is seated on January 3rd.

An issue that will probably be deferred to the 113th congress will be the report to congress that is required under the Coin Modernization, Oversight, and Continuity Act of 2010, (Public Law No: 111-302 [Text] [PDF]). The law requires the U.S. Mint to produce a report about the metals used for coinage and alternatives two years from enactment. Since the law was signed by the president on December 14, 2010, the U.S. Mint is required to submit their report by December 14, 2012.

Adolph A. Weinman’s Winged Liberty Head “Mercury” Dime effigy to be used on the new palladium bullion coin.

Another issue that will also probably be deferred to the 113th congress will be the study of the viability of issuing palladium bullion coins. Under the American Eagle Palladium Bullion Coin Act of 2010 (Public Law No: 111-303 [Text] [PDF]), the U.S. Mint is supposed to study whether it is viable to produce palladium coins as specified under the Act. That report is also due to congress on December 14, 2012.

Although there is no report from the U.S. Mint as to the status of either report, it would be reasonably certain that the U.S. Mint will submit both reports by December 14. However, it would also be reasonably certain that the House Financial Services Subcommittee on Domestic Monetary Policy and Technology will leave it for the next congress’s agenda.

Internet Sales Taxes Will Hurt Online Numismatic Sales

Concern is circulating through the numismatics industry after the Wall Street Journal published a story that the Republican Governors Association supports the collection of sales tax for Internet sales within their state. 

The process started earlier this year as governors, looking for a way to close budget gaps, started to consider forcing companies like Amazon.com to collect sales taxes for goods shipped to their states. In February, New Jersey Governor Chris Christie (R) negotiated a deal with Amazon to collect sales taxes for purchases shipped to New Jersey. As part of that deal, Amazon will be opening a warehouse and shipping center in New Jersey.

What was not reported was that the reason Amazon opened a facility in New Jersey was that federal law currently prevents the collection of taxes for sales shipped across state lines for companies that do not have a presence in the state. Since Amazon now has a presence in New Jersey, they can collect sales taxes on purchases. Otherwise, federal law exempts Amazon and any other company selling on the Internet from paying sales taxes to states they have no presence in the state where the item was shipped.

Sales tax on Internet-based purchases will affect everyone that sells online including the eBay seller, coin dealers, auction houses, and bullion sellers. If you sell online, you will have to figure out how to collect sales taxes. While larger companies may have the facilities and resources to collect sales taxes and pay them to the state. The rest will have to work with a service provider to be compliant with the law. Any time a small business has to add new capabilities using an outside service, it will be an additional expense to the small business.

In the numismatics industry, most of the dealers are small businesses. Many work from their homes shipping orders throughout the country while others may work from shops with a local clientele that also provides some Internet sales.

Aside from the administrative overhead to collect taxes, states have different rules for what is taxable and what is not. Some states do not tax bullion sales while other states tax bullion sales, but do not tax them over a certain limit which could be different from state to state. Some states do not tax coin sales while other states do, but when the sales are lower than a threshold, which can change between states.

This will not only hurt numismatic sales, but all small business sales across the Internet.

While Governor Christie and his fellow governors look at Amazon as their fiscal savior, Joe’s Local Coin Shop that may do a few thousand dollars in sales from the Internet now has to figure out how to collect sales taxes for the states or stop taking Internet-based orders, reducing income. Talk about a “job killing tax plan!”

Three bills have been introduced into congress that will end the restrictions to collecting sales taxes on Internet-based sales:

  1. S. 1452Main Street Fairness Act and its companion H.R. 2701.  Not only will this bill open up the collection sales taxes across state boundaries, but it “asks” the states to create Unified Rules for collecting sales tax.
  2. H.R. 3179Marketplace Equity Act: This bill will open cross state sales tax collection but has an exemption for small businesses. To qualify for the small business exemption, the company would have to sell less than $1 million nationwide and less than $100,000 in the state. However, the bill would allow the states to adjust these limits and affecting administrative costs to small businesses.
  3. S. 1832Marketplace Fairness Act: Simiar to the Main Street Fairness Act, it has no exemptions for small businesses, but limits the sales tax to goods and services sold while exempting shipping and handling.

Adding these additional administrative burdens to small businesses in the dealer community will close or restrict interstate markets especially for the buyer in rural America who depends on Internet sales to build a collection. There will also be an impact with online auction sites that makes coins available from all over the country. It will drive up costs to run these auctions and drive sellers away.

Time is going to come when states will have to start to collect sales taxes from interstate sales. However, congress has to do its job as a regulator of interstate commerce to protect the small businesses, like coin dealers, from having to manage 50 different sales tax rules.

Contact your member of congress and let them know that if they are going to allow sales tax to be collected from Internet sales, they need to do their job under the commerce clause to prevent this from putting dealers out of business.

To find your member of the House of Representatives, go to house.gov and enter your zip code in the box on the upper right of the page. Follow the instructions to contact your representative.

For the Senate, go to senate.gov and use the pull-down menu at the top right of the page, select your state, press the “Go” button and click on your senator’s web form address and let them know what you think.

The only way to help preserve our ability to continue to buy numismatics via the Internet from any dealer, anywhere!

Help the Ancient Coin Hobby TODAY

Start your new year off right and help the ancient coin collectors in the United States!

On December 17, I posted “First They Came For The Ancient Coins…” about the State Department accepting public comment on the extension of the Memoranda of Understanding with Cyprus by the State Department’s Cultural Property Advisory Committee (CPAC). The deadline for submitting comments is on January 3, 2012—TOMORROW!

Recently, the American Numismatic Association joined the cause. “We are deeply concerned that ever-expanding import restrictions have gravely damaged the ability of American citizens to learn about ancient cultures through handling common ancient coinage of the sort that is avidly collected worldwide,” ANA President Tom Hallenbeck said. “Such regulations, to the extent they exist at all, should be narrowly tailored to restrict goods that could only be the product of looting from archaeological sites. Coins cannot meet this test. By their nature, ancient coins have circulated far from their place of origin, have been extensively collected throughout the world in modern centuries, and like common mass-produced items, ancient coins do not normally have any verifiable provenance.”

To submit comments three pages in length or less electronically, go here: http://www.regulations.gov/#!submitComment;D=DOS-2011-0135-0002.

For more information and ideas of what to say, please reread my earlier post.

Allowing the State Department to entertain these types of actions should be abhorrent to any collector because if it begins with the ancient coins, then where does it stop? To borrow the concept from Pastor Martin Niemöller’s “First they came…”:

First they came for the ancient coins,
and I didn’t speak out because I wasn’t a ancient coin collector.

Then they came for all foreign coins,
and I didn’t speak out because I wasn’t a foreign coin collector.

Then they came for the obsolete currency,
and I didn’t speak out because I wasn’t a obsolete currency collector.

Then they came for the pattern coins,
and I didn’t speak out because I wasn’t a pattern coin collector.

Then they came for my silver and gold United State coins,
and there was no one left to speak out for me.

Make it your resolution to help maintain the hobby for all of us!

First They Came For The Ancient Coins…

I am sharing the following from Wayne G. Sayles, Executive Director of the Ancient Coin Collectors Guild (ACCG). Please read my comment following Wayne’s letter.

The following is an extremely important message from Peter K. Tompa, ACCG Board Member and Chairman of the Legislative Affairs Committee:

Fresh on the heels of its deliberation over import restrictions on coins from Bulgaria, the US State Department has now announced a hearing on extension of the MOU (Memoranda of Understanding) with Cyprus that is now up for its 5-year renewal. The Cultural Property Advisory Committee is seeking public comment on the renewal request To submit comments electronically to the State Department’s Cultural Property Advisory Committee (CPAC), see below:

Those present restrictions 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.

Why bother to comment when 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 Greece?

Simply, silence just 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 the Roman Imperial 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? To submit comments three pages in length or less electronically, go here: http://www.regulations.gov/#!submitComment;D=DOS-2011-0135-0002.

If you are having trouble, go to the Federal eRulemaking Portal (http://www.regulations.gov), enter the Docket No. DOS-2011-0135 for Cyprus, and follow the prompts to submit a comment. To send comments via US Mail or FEDEX see the directions contained in the Federal Register Notice above. For further information, also see http://exchanges.state.gov/heritage/whatsnew.html.

What should I say? The State Department bureaucracy has dictated that any public comments should relate solely to the following statutory criteria:

  1. Whether the cultural patrimony of Cyprus is in jeopardy from looting of its archaeological materials;
  2. Whether Cyprus has taken measures consistent with the 1970 UNESCO Convention to protect its cultural patrimony;
  3. 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,
  4. 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. 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.

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.

For more information about these issues, see: http://culturalpropertyobserver.blogspot.com/

Please submit comments just once, before the deadline on Jan. 3, 2012.

With best wishes and thanks for your support,

Wayne G. Sayles
Executive Director


From Scott: I am not a collector of ancient coins, but as a member of the numismatic community, it bothers me that the State Department has been capitulating to nearly every foreign government regarding artifacts that have been in worldwide circulation for hundreds or thousands of years with no issue. Suddenly, when countries appear to have an issue with the United States, they appear to be using peripheral means to try to take action against the U.S. and its citizens. Allowing the State Department to entertain these types of actions should be abhorrent to any collector because if it begins with the ancient coins, then where does it stop?

To borrow the concept from Pastor Martin Niemöller’s “First they came…”:

First they came for the ancient coins,
and I didn’t speak out because I wasn’t a ancient coin collector.

Then they came for all foreign coins,
and I didn’t speak out because I wasn’t a foreign coin collector.

Then they came for the obsolete currency,
and I didn’t speak out because I wasn’t a obsolete currency collector.

Then they came for the pattern coins,
and I didn’t speak out because I wasn’t a pattern coin collector.

Then they came for my silver and gold United State coins,
and there was no one left to speak out for me.

Speak now before they come for your coins!

The letter was sent via email by Wayne Sales on December 15, 2011. It was reformatted to fit in this space and some information links were added.

Help Protect the Ancient Collecting Hobby

I received this in email and thought it was important enough to reprint here.

This message is being transmitted on behalf of the Ancient Coin Collectors Guild (ACCG) concerning an urgent matter that affects all collectors of ancient coins.

What is being asked of you is to take 5 minutes to write a comment to the State Department’s Cultural Property Advisory Committee via a website. Please submit your comment once by the deadline of November 2, 2011, 5pm EST.

Please consider sending this to any coin collector you know:

The US State Department is seeking public comment on a new request for import restrictions made on behalf of Bulgaria. To submit comments electronically to the State Department’s Cultural Property Advisory Committee (CPAC), go here: http://www.regulations.gov/#!submitComment;D=DOS-2011-0115-0001. For further details of the request, see http://exchanges.state.gov/heritage/whatsnew.html.

What is at issue?  Despite President Obama’s efforts to foster government transparency, the State Department has not indicated whether coins are part of the request. Nonetheless, based on recent history, it is probable that import restrictions on coins will be proposed. As a practical matter, this means the State Department and US Customs may be considering restrictions on tribal coinages from Thrace, coins of Greek city states like Apollonia Pontica and Messembria, Roman provincial coins struck at Bulgarian mints, and even some Roman Imperial coins. It’s also possible that any restrictions will include later coins as well. Though details are few, the public summary the State Department has provided indicates that Bulgaria seeks import restrictions on objects from 7500 B.C. to the 19th c. AD. If restrictions are imposed on coins, many common types will likely become so difficult to import legally that they will become unavailable to most collectors.

Why bother?  Large numbers of coin collectors have made their concerns known to CPAC. Recently, 70% of the comments CPAC received on an MOU with Greece were from concerned coin collectors. Even though recent extensions of import restrictions to certain Greek and Roman Republican coins from Italy and on coins from Cyprus despite the vast amount of public comment make it easy to become cynical, public comment can at least help moderate demands for import restrictions. For example, the archaeologists actively sought import restrictions on Roman coins as well during the discussions about the Italian MOU, but they remain exempted, and thus easy to obtain on the open market, likely due to the 2000 or so faxes CPAC received from concerned collectors.

What should I say?  Tell the State Department and CPAC what you think about the bureaucracy’s efforts to deny you the ability to collect common ancient artifacts that are available worldwide. You might also might consider noting that coins from Bulgarian mints are common and often very inexpensive. Tens of thousands or hundreds of thousands exist in collections around the world, and because of the low price the vast majority of these coins will never have been through an auction and will have no verifiable provenance.

If you are having trouble commenting from the direct link above, go to http://www.regulations.gov and search on docket number DOS-2011-0115. Further information about regulation.gov, including instructions for accessing agency documents, submitting comments, and viewing the dockets, is available on the site under “How To Use This Site.” Kindly note that your comments will be public so avoid conveying any personal information, and, of course, be polite in commenting on the issue.

Please submit comments just once, before the cutoff of 5:00 PM EST Nov. 2, 2011.

NOTE:  Click this link to see the Notice of Receipt of Cultural Property Request From the Government of the Republic of Bulgaria.

From a note sent by vauctions.com.

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