.mobi I Feel Cheated - Considering Legal Action Against SEDO

[DomainTalker]

I feel cheated...


At the designated auction close time for SEDO 3 auction, I was formally notified by Sedo, by email, that 2 auctions I was bidding on had CLOSED - and it said: 'You're the WINNING BIDDER', in each case.


I had won 2 excellent domains.


I double-checked....I visited the auction pages for each name (no evidence of tech difficulties). They each said: 'This auction is now closed', and that 'You (me) are the 'Winning bidder' - and showing my successful bid amount.


I treble-checked.....I visited the 'Transfers' page in my Sedo Account (no evidence of tech difficulties)....And, sure enough, both names were listed there - with the bid amount beside each name - and the notification of 'Transfer in Progress'...this page also serves as the invoice for each domain's payment.


I had bid - the auctions were now closed - I had written, formal, confirmation that the auctions were closed, and that I was the winner in each case - and I had confirmation on the auction pages, themselves - plus a Sedo entry into the 'Transfers' page in my account at SEDO that serves as the invoice for each sale, and noting they were 'Transfers in Progress'....


And, all these double & treble checks I did were done on the Sedo website AFTER I received the win-confirmation emails from Sedo - AND there was NO sign of any 'Tech problems', as I visited the auction pages in search of the confirmation, and visited Sedo's Transfers' page to also confirm the transaction...


There is no doubt....It was all agreed - Sedo and I had a deal.


At that moment, a binding contract was formed - between the parties (me & Sedo/mTLD).


Having confirmed I had won these 2 names, I immediately dropped out of bidding for the other names I was bidding for.....I was happy with what I'd won.


It was 4.15am in Sydney........I immediately exited SEDO, and went to bed.


It was only this morning - Sydney time - that I woke to find emails from Sedo saying I had been 'outbid' for my two names...!!...WTF....??!!


....Oh, and also an email saying the auction had been extended, timed at being sent to me 1hr 50mins AFTER the auctions had CLOSED - and after I had been confirmed the winner of the names - and had long since exited the auction...!!!!!


Now, ladies & gentlemen...


I don't know about you, but, this is unethical, unconscionable business practice, imo....Its sharp practice, its non-transparent, and, I believe, illegal auction practice.


Auction contracts are formed when a bid is made and it is accepted by the auctioneer....From that moment, there is a legal, binding contract between the parties.


If the auctioneer had technical problems that prevented bids at the last moment - then, they should NOT have formally accepted the current bid/offer...Once they DO accept the offer formally - it is a contract at that price...


Can you imagine Sedo's attitude to me, if, after I was confirmed as the winning bidder, I turned around and said: 'Um, sorry....my computer crashed, so I don't believe I have a contract with you to pay for the name I won....'....!!??....They'd laugh at me...And - quite rightly - remind me we had a BINDING CONTRACT...


Their formal acceptances also cost me the chance to bid further on those two domains (I was told the auction was closed)...I reasonably assumed it was all over, I'd won, and I left the arena, shut down my computer, exited Sedo altogether.

AND, their formal acceptances persuaded me to drop out of other auctions I was bidding on - thereby costing me a chance at those names...


And...to be informed 1hr 50 mins AFTER THEY HAD CLOSED THEM, that the auctions were on again.....is....simply...breathtaking....And, reeks of lack of integrity, in the name of greed...


These are valuable domains....with serious potential value..


I feel I have been cheated...

.

 

[Dave_Z]

As I indicated in an earlier post, SEDO's terms and conditions indicate that technical malfunctions are not grounds for disputing the outcome.

Let's quote that portion again:

"Sedo in no way guarantees or further warrants that the web page on which bids can be placed (“Bidding Page”) during the Auction Period is permanently accessible. If a Bidding Page is not accessible, the Seller may not, in the future refer to a potentially higher bid during this time period as a mechanism for not following through with a sale. Furthermore, a potential bidder may not argue, for the same purposes, that he would have been the highest bidder the Domain up for Auction if the webpage would have been available."

Let's break that down and try to understand it fully:

Sedo in no way guarantees or further warrants that the web page on which bids can be placed (“Bidding Page”) during the Auction Period is permanently accessible.

So they don't guarantee the web page for placing bids will always be up. That
oughta be obvious.

If a Bidding Page is not accessible, the Seller may not, in the future refer to a potentially higher bid during this time period as a mechanism for not following through with a sale.

If I understand that accurately, the seller can't say they won't follow through
on the auction sale just because someone made a higher bid while the page
wasn't displaying that time.

Furthermore, a potential bidder may not argue, for the same purposes, that he would have been the highest bidder the Domain up for Auction if the webpage would have been available

Again, if I understand that, any potential bidder can't argue that they placed
the highest bid for the domain name if the web page wasn't available.

Now here's exactly what you said previously:

This is stating that any technical difficulty with the site during the auction is not grounds for disputing the successful bid. In other words, even if there is a technical problem, the winning bid holds.

Here's a question: where exactly is what you said above stated in that term
or anywhere in the user agreement?

One thing I've learned in reading and trying to understand agreements is that
the terms stated mostly mean exactly what they say. If you're unsure of how
they mean, you can always ask the one who drafted the agreement to clarify
whatever you're unsure of to erase any lingering doubts.

On the side, this term is also present in Sedo's UA:

SEDO MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NOR DOES SEDO MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SITE.

So their user agreement has a term broadly covering errors. It might interest
some of you to know there's a law in the US that makes things like checking
a box beside something like "I've read the contract and agree to its terms" the
online equivalent of signing your name on a paper one.

Many service providers' contracts have terms like that. It also so happens in
the US that courts have generally upheld such, barring a few exceptions.

Now unless I got something wrong, someone said a contract has formed once
the winning bidder received notification of such. Since Sedo said to disregard
the erroneous notification and the auction was still on-going that time, they
likely believe they have no contractual obligations to you specifically for this
auction.

Obviously some of you interpret the terms of the agreement differently. Your
interpretation means nothing if it doesn't coincide with the one who wrote it
in the first place and are prepared to defend it in court, and Sedo's definitely
ready.

The things discussed here by far somewhat reminds me of this thread:

http://www.namepros.com/legal-issues-and-disputes/340680-dns-research-inc-vs-enom-verisign.html

The gist of that can be best summarized by the comment via the link below:

http://www.namepros.com/340680-dns-research-inc-vs-enom-verisign-3.html#post2025486

I'll tell you what: stop discussing this matter here, gather those who believe
they've been wronged by Sedo, talk to a lawyer to examine all facts of this
issue, and sue them. I wish you and the others good luck and hope this will
be amicably resolved somehow.

As to why I'm participating in this discussion, I prefer to try to fully grasp the
issue and try to help people around here understand what's realistically going
on. It doesn't mean anyone has to agree, but we oughta get real or we'll all
be severely disappointed due to unrealistic expectations.

One thing I'll dryly say and agree, though, is this leaves a bitter taste...

Edit: Apparently there's another thread about it:

http://www.namepros.com/dot-mobi/403779-i-bid-611-000-music-mobi.html

Have a chat with the OP to see if you can join the party...

 

[domain_trader]

Here's a question: where exactly is what you said above stated in that term
or anywhere in the user agreement?

What you just quoted (from the user's agreement) states that you can't refuse to follow through with a sale if the auction page is not available. That is precisely what Sedo (representing .mobi, the "seller") did - refused to honour the sale because the auction page was not available. They subsequently extended the auction and resold to those who would have placed a higher bid had the auction page been originally available. What am I missing?

On the side, this term is also present in Sedo's UA:


So their user agreement has a term broadly covering errors. It might interest
some of you to know there's a law in the US that makes things like checking
a box beside something like "I've read the contract and agree to its terms" the
online equivalent of signing your name on a paper one.

Many service providers' contracts have terms like that. It also so happens in
the US that courts have generally upheld such, barring a few exceptions.

Most contracts have broad disclaimers to indemnify companies against any liability. These will not hold up if misconduct is established.

Now unless I got something wrong, someone said a contract has formed once
the winning bidder received notification of such. Since Sedo said to disregard
the erroneous notification and the auction was still on-going that time, they
likely believe they have no contractual obligations to you specifically for this
auction..

So if SEDO say the contract is void, then it is void, that simple? You seem to place a great deal of authority and wisdom in SEDO. SEDO had a vested interest in continuing the auction, and they made a snap decision to continue it. I doubt they had time to weigh up the contractual implications of this. I'm not too sure either that they are as confident as you seem to be that they are covered, despite what they say publicly.

I'll tell you what: stop discussing this matter here, gather those who believe
they've been wronged by Sedo, talk to a lawyer to examine all facts of this
issue, and sue them. I wish you and the others good luck and hope this will
be amicably resolved somehow.

As to why I'm participating in this discussion, I prefer to try to fully grasp the
issue and try to help people around here understand what's realistically going
on. It doesn't mean anyone has to agree, but we oughta get real or we'll all
be severely disappointed due to unrealistic expectations.

I don't know, it sounds like you really really don't want this discussed here. You also seem awfully keen to justify why you are involved in this discussion. If I was paranoid, one would think...

Edit: Apparently there's another thread about it:

http://www.namepros.com/dot-mobi/403779-i-bid-611-000-music-mobi.html

Have a chat with the OP to see if you can join the party...

Same problem but different case. But of course, if you don't want us to discuss this...

 

[tricolorro]

Interesting. Essentially they said the auction didn't conclude until much later,
and their systems wrongly notified some of you winning or so.

If this hits court and Sedo demonstrates in good faith what happened indeed
occurred, then I'm sorry to say all those confirmations you got in your PCs or
so will likely mean nothing. Sedo's contract you all agreed to (check box and
all) includes disclaimers of warranty and all that.

Big ifs, of course. But it'll be your burden to show they're "lying", just to put it
bluntly.

And no, they're not going to retrieve those .mobis from their winners. It's sure
nice if they can somehow make up for this through some other way, but they
aren't required to.

Again, JMO. I have no problem being proven wrong if someone forces this into
legal proceedings and they win their case, but I ain't optimistic.

Dave,

This excerpt from Sedo's Terms should not be discounted.

It could come to bite them in the ass...and it could be a Big Bite!

"Sedo in no way guarantees or further warrants that the web page on which bids can be placed (“Bidding Page”) during the Auction Period is permanently accessible. If a Bidding Page is not accessible, the Seller may not, in the future refer to a potentially higher bid during this time period as a mechanism for not following through with a sale. Furthermore, a potential bidder may not argue, for the same purposes, that he would have been the highest bidder the Domain up for Auction if the webpage would have been available."

Patrick

 

[RTM]

Incredible: this .mobi SEDO fiasco will soon need a Wikipedia entry to sort it all out.

Rob

 

[Skinny]

Wow, I haven't used sedo to buy any domains, but this seems to be a huge fiasco.

I would be livid if this happened on a name I was bidding on especially if it was thousands of dollars.

Sedo really messed up on this one. I'd like to see what happens from here on out.

Very interesting.

I hope those who really won the names get them eventually.

Skinny

 

[TheBaldOne]

RTM, I feel sorry for the one who writes it!

 

[Dave_Z]

Most contracts have broad disclaimers to indemnify companies against any liability. These will not hold up if misconduct is established.

Definitely. But as you said, if "misconduct" is established, and that's a big if
in this case.

Not that I don't want to discuss this further. But if you folks want to find out
what's the "answer", the only way to know is to force the issue if Sedo won't
budge.

So far the OP in that other .mobi thread appears ready to sue to prove their
argument. No doubt everyone here's watching intently.

That is precisely what Sedo (representing .mobi, the "seller") did - refused to honour the sale because the auction page was not available.

Dave,

This excerpt from Sedo's Terms should not be discounted.

It could come to bite them in the ass...and it could be a Big Bite!

"Sedo in no way guarantees or further warrants that the web page on which bids can be placed (“Bidding Page”) during the Auction Period is permanently accessible. If a Bidding Page is not accessible, the Seller may not, in the future refer to a potentially higher bid during this time period as a mechanism for not following through with a sale. Furthermore, a potential bidder may not argue, for the same purposes, that he would have been the highest bidder the Domain up for Auction if the webpage would have been available."

Patrick

Was the bidding page inaccessible during the auction, though? Does that term
above say anything about winning notification emails sent in error?

Just some questions to ponder. Nothing personal.

 

[DomainTalker]

Dave...

This isn't just talk...Moves are afoot, as we speak.....Not only Mr Music....(edit) There is a group...

The group seriously wants this resolved.

.

 

[Dave_Z]

Good luck to you folks, then. The sooner, the better.

 

[DomainTalker]

This clinches it in favour of the original winners, imo...


Section 5.1.2.7 of the Sedo TOS:

"Sedo in no way guarantees or further warrants that the web page on which bids can be placed (“Bidding Page”) during the Auction Period is permanently accessible.If a Bidding Page is not accessible, the Seller may not, in the future refer to a potentially higher bid during this time period as a mechanism for not following through with a sale. Furthermore, a potential bidder may not argue, for the same purposes, that he would have been the highest bidder the Domain up for Auction if the webpage would have been available."


This says:


(i) That Sedo does not guarantee that the bid web page will be 'permanently accessible'.

BUT

(ii) That the Seller (mTLD) cannot refer to a higher bid (if the page is not accessible) as a mechanism for not following through with the sale.

(iii) And a potential bidder cannot argue (if the page is not accessible) that he would have been the highest bidder - if the page had been available.


...In short....It is the Seller (mTLD) that has the binding Contract with the highest bidder, not Sedo...

...And no bidder can claim to be a higher bidder (than the original highest bidder) just because his bid did not show up when the auction page was not accessible - His 'later bid' does not count.


It also means, that Sedo cannot claim that those same higher bids (lodged when the page is not available) are valid bids (if the bidder can't claim they are valid bids, then Sedo can't claim they are valid, either) - Therefore, Sedo cannot use those bids as lodged within the final minutes of the auction (when the auction page was not available) to trigger an 'extension' of the auction.


Importantly It appears to explain just WHY Sedo's system closed the auctions - and sent out winner's emails....It WASN'T a MISTAKE - It was precisely what Sedo's own system was SUPPOSED to do (according to Sedo's own TOS) under precisely these circumstances.....ie close the auction, and declare winners, when the time ran out....!!


Thus the 'extended' - or later - auctions were not valid. They had already been correctly closed, by Sedo.


The Seller is mTLD....and they say in their .mobi Premium Auction Terms that they submit the names for auction under the Sedo TOS....mTLD is therefore bound by the above clause.



...ie mTLD must award the original highest bidders the domains - because of Sedo TOS Section 5.1.2.7.

.

 

[TheBaldOne]

Poor old mTLD!

 

[Dave_Z]

In short....It is the Seller (mTLD) that has the binding Contract with the highest bidder, not Sedo...

One could argue that in court. Quoting what you said below:

The Seller is mTLD....and they say in their .mobi Premium Auction Terms that they submit the names for auction under the Sedo TOS....mTLD is therefore bound by the above clause.

Now mTLD's contract is with Sedo. When you joined the auction, whose terms
and conditions did you agree to directly?

(Hint: it's the one where you checked the box beside like "I've read the damn
contract and agree to its terms". The one you contracted with can also input
the terms entered with another.)

 

[DomainTalker]

I checked this with mTLD, themselves, Dave...


They confirmed the auction for the these names were run under Sedo TOS - and mTLD actually state that, too, in their own .mobi Premium Domain Auction terms...

...and Sedo TOS say what I said above....


So....that's it, I reckon.

.

 

[TheBaldOne]

BREAKING NEWS!!!

Follow this link:

http://www.namepros.com/dot-mobi/405671-k-i-l-l-k-i.html


Dot mobi retracts news story of breaking records at auction!

 

[DomainTalker]

(smile)

.

 

[Steven]

Dave,

This excerpt from Sedo's Terms should not be discounted.

It could come to bite them in the ass...and it could be a Big Bite!

"Sedo in no way guarantees or further warrants that the web page on which bids can be placed (“Bidding Page”) during the Auction Period is permanently accessible. If a Bidding Page is not accessible, the Seller may not, in the future refer to a potentially higher bid during this time period as a mechanism for not following through with a sale. Furthermore, a potential bidder may not argue, for the same purposes, that he would have been the highest bidder the Domain up for Auction if the webpage would have been available."

Patrick

Agreed.
This TOS was not enforced in the latest premium .mobi sedo auction.

 

[domain_trader]

BREAKING NEWS!!!

Follow this link:

http://www.namepros.com/dot-mobi/405671-k-i-l-l-k-i.html


Dot mobi retracts news story of breaking records at auction!

Yes, the first concrete sign that .MOBI realise they are in serious trouble here. SEDO have been wiser and have made no grand announcements. Expect to hear very little from either until the case is heard in the courts.

 

[IAmAllanShore]

Disappointing... nothing works correctly anymore, does it?
Best of luck to those of you involved, and if you want more .mobi's without having to deal with Sedo, I'll sell you mine :notme:
-Allan :gl:

 

[Dave_Z]

This TOS was not enforced in the latest premium .mobi sedo auction.

Only a court of competent jurisdiction is in the best position to say whether
that's the case or not. Otherwise, based on what's discussed so far, how?

 

[DomainTalker]

Dave....See post #90 above....That's how

.