Will McLemore, et al. v. Roxanna Gumucio, et al.

Nashville, Tennessee civil litigation lawyers represented the Plaintiff seeking a declaratory judgment that Tennessee's Auctioneering license law was unconstitutional because it violates the First Amendment.



In 1967, the Tennessee General Assembly passed a state law to define and regulate the

auctioneering profession. See 1967 Tenn. Pub. Acts ch. 335. Under this law, the Tennessee

Auctioneer Commission ("the Commission”) was charged with issuing professional licenses to

auctioneers who were "reput[able], trustworthy, honest and competent to transact the business of

an auctioneer . . . to safeguard the interest of the public.” Ex. A, 1967 Tenn. Pub. Acts ch. 335,

R. 19-1, at Page ID #157. Broadly speaking, this regime requires auctioneers to become licensed

in Tennessee, and a person may not "[a]ct as, advertise as, or represent to be an auctioneer

without holding a valid license issued by the [C]ommission.” Tenn. Code. Ann. § 62-19-

102(a)(1).1 Persons may become licensed auctioneers after successful completion of a licensure

exam or course of instruction ranging from sixteen to thirty-four hours, depending on the

1The Tennessee statute only applies to auctioneering professionals, as opposed to various amateur, non-

auctioneer's desired title and role, ranging from "bid caller auctioneer” to "affiliate auctioneer”

to "principal auctioneer.”2 See Tenn. Code. Ann. § 62-19-111.



This statutory scheme underwent various updates throughout the years to keep pace with

changing technology and the rise of online auctions. Since 2019, the Tennessee statute has

defined an "auction” to mean:



[A] sales transaction conducted by oral, written, or electronic exchange between

an auctioneer and members of the audience, consisting of a series of invitations by

the auctioneer for offers to members of the audience to purchase goods or real

estate, culminating in the acceptance by the auctioneer of the highest or most

favorable offer made by a member of the participating audience.



Tenn. Code. Ann. § 62-19-101(2) (emphasis added). Among other exemptions, this definition

excludes online listings for a "fixed price,” where the seller has set a predetermined price for the

item, as well as "timed listings that allow bidding on an internet website, but do not constitute a

simulcast of a live auction.” Tenn. Code. Ann. § 62-19-103(9). The term "timed listing” is

understood to mean an online listing "offering goods for sale with a fixed ending time and date

that does not extend based on bidding activity,” such as with items sold through platforms such

as eBay. See 2019 Tenn. Pub. Acts ch. 471, R.19-4, at Page ID #190; Tenn. Code. Ann. § 62-19-

101(12). Unlike timed listings, auctioneers hosting extended-time auctions are subject to

Tennessee's license requirement because of their apparent similarity to conventional auctions and

increased potential for escalatory bidding. Conducting an online auction without a license, or

otherwise violating the statute, is a Class C misdemeanor. Tenn. Code. Ann. § 62-19-121.



Plaintiffs Will McLemore, Ron Brajkovich, Justin Smith, and Blake Kimball are

professional auctioneers employed by the Tennessee-based McLemore Auction Company, LLC,

who conduct extended-time auctions online. Plaintiff McLemore, the company's president and

founder, is a licensed auctioneer under Tennessee law. Plaintiffs Brajkovich, Smith, and Kimball

are all unlicensed ("the unlicensed auctioneers”). Over a series of Task Force meetings to

implement the 2019 auctioneering law (the "Online Auction Law”), McLemore advocated

against the law's application to extended-time online auctions, but his views did not prevail.

2Principal auctioneers also require a high school diploma or equivalent credential to become licensed and

must serve as an affiliate auctioneer under supervision for at least six months.

Motion to dismiss granted.



Affirmed