The Evolving Standard
Under UCC §9-610(b), every aspect of a collateral disposition must be commercially reasonable, including the method and manner of sale.
Historically, courts looked at:
• Whether notice was published
• Whether advertisements were placed
• Whether the sale was public or private
Today, sophisticated markets operate digitally. As a result, courts are increasingly receptive to evidence demonstrating actual buyer engagement — not merely theoretical exposure.
There is a material distinction between:
• Proving that an advertisement was placed, and
• Proving qualified buyers viewed, interacted with, and evaluated the offering.
In contested UCC Article 9 dispositions, courts are examining whether the secured party meaningfully engaged the relevant market. Digital engagement metrics can serve as objective, data-driven proof that the market was actively and thoroughly probed.
This article examines how engagement analytics function as evidentiary support in defending commercially reasonable dispositions under UCC §9-610(b).
Core Digital Engagement Metrics
Practitioners should focus on metrics that demonstrate reach, interaction, and competitive interest.
1. Email Campaign Analytics
Email is still one of the more effective tools for reaching industry-specific buyers.
Relevant metrics include:
• Number of recipients
• Segmentation criteria (industry-specific lists)
• Open rates
• Click-through rates
• Geographic distribution of opens
• Bounce rates
From an evidentiary standpoint, these metrics demonstrate:
• The breadth of outreach
• Targeting of appropriate buyer pools
• Actual interaction with the offering materials
An email blast to 2,000 targeted industry buyers with a 28% open rate and 12% click-through rate is far more persuasive than a generic claim of “industry outreach.”
Generically speaking, open rates of less than 25% and click-through rates of less than 3% is considered poor.
Keep in mind that open rates can be misleading because many email platforms track an “open” when the tracking pixel (a tiny invisible image) is loaded — not necessarily when a person actually reads the message.
2. Landing Page Traffic and Behavior
Dedicated landing pages generate trackable data that can be preserved and introduced in litigation.
Key metrics include:
• Total unique visitors
• Geographic location of visitors
• Time spent on page
• Download activity (due diligence documents)
• Return visits
• Device type (desktop vs. mobile)
Time-on-page data is particularly powerful. It demonstrates that prospective buyers did not merely see the listing — they evaluated it.
Keep in mind that a page view only tells you that something loaded, not that a real, interested person meaningfully engaged.
Traffic numbers can be inflated by:
• Bots
• Spam crawlers
• Email security scanners pre-loading links
• Accidental clicks
• Repeat visits from the same user
• Paid traffic that isn’t well targeted
In email campaigns especially, some corporate filters automatically “click” links to scan them for malware, which can register as visits even though no human ever saw the page.
High return visitor rates often correlate with serious interest.
3. Registration Data
Online platforms generate robust registration analytics.
Key metrics include:
• Number of interested parties
• Industry classification of registrants
• Geographic diversity
• Registration timing trends
• Completed due diligence acknowledgments
Courts evaluating competitive bidding environments look favorably upon documented multi-bidder participation and diverse geographic representation.
In addition to basic registration metrics, a meaningful backup should extend deeper into analytics to identify and track genuinely interested parties.
This may include analyzing IP address data to confirm unique institutional engagement and requiring prospective bidders to complete detailed registration or qualification forms that capture full contact and background information.
The most critical component, however, is active follow-up.
Expressions of interest that are not pursued through direct outreach, qualification calls, or structured bidder engagement represent a significant red flag.
If interested parties are not being systematically contacted and advanced through a defined follow-up process, the effectiveness of the marketing effort — and the integrity of the bidding environment — should be carefully questioned.
4. Digital Advertising Performance
Paid digital advertising is a crucial component of a satisfactory outreach campaign.
A comprehensive marketing effort should include documented paid advertising to demonstrate that the opportunity was broadly and proactively promoted to the marketplace.
Targeted digital advertising, industry publications, email sponsorships, and platform-based promotions provide measurable reach beyond existing databases and organic traffic.
Courts and stakeholders evaluating the sufficiency of a sale process look favorably upon evidence that resources were invested to maximize exposure and attract competitive interest.
The absence of paid promotion may suggest a limited outreach effort.
Documented advertising impressions, click data, and audience targeting reports help substantiate that the property was meaningfully presented to the widest relevant pool of potential bidders.
Practitioners should preserve:
• Impressions (total ad views)
• Click-through rates
• Cost-per-click
• Geographic targeting data
• Audience demographic data
Impression data shows exposure. Click-through data shows engagement.
Together, they establish that the sale opportunity was actively pushed into the market rather than passively posted.
Why Engagement Metrics Matter in Deficiency Litigation
In many jurisdictions, particularly those applying rebuttable presumption rules, once a debtor challenges the sale, the burden shifts to the secured party to prove commercial reasonableness.
Digital metrics strengthen this proof in several ways:
Objective Evidence
Unlike testimony that “we marketed extensively,” analytics provide quantifiable evidence.
Market Probing Demonstration
Metrics show that the secured party did not merely announce the sale — they probed the market and measured response.
Rebutting “Low Price” Arguments
Where a debtor argues that the sale price was inadequate, documented engagement data supports the conclusion that:
• The market was sufficiently exposed
• Qualified buyers evaluated the asset
• The price reflects actual competitive dynamics
The UCC makes clear that a lower-than-expected price alone does not render a sale commercially unreasonable.
Process governs outcome.
Digital analytics reinforce that process.
Best Practices for Practitioners
To maximize evidentiary value, engagement metrics should be:
1. Preserved in Real Time
Do not wait until litigation arises. Archive analytics dashboards contemporaneously with the sale.
2. Integrated into the Final Disposition Report
Engagement data should be included alongside:
• Marketing summaries
• Inquiry logs
• Bid histories
• Notice documentation
3. Presented in Context
Raw numbers without explanation lack persuasive force.
Reports should interpret metrics within the relevant industry standard.
Examples include:
• Average industry email open rates
• Typical bidder conversion ratios
• Comparable asset marketing benchmarks
4. Authenticated by the Platform or Firm
If litigation is anticipated, ensure the responsible party can testify to the accuracy and methodology behind the data.
Limitations and Cautions
Digital engagement metrics are not a substitute for proper notice, valuation, or procedural compliance.
They are supplementary evidence — powerful, but not dispositive.
Practitioners must also ensure:
• Data privacy compliance
• Proper chain-of-custody preservation
• Accurate interpretation of analytics
Overstating weak metrics can undermine credibility.
Conclusion
Digital engagement metrics represent one of the most underutilized evidentiary tools in defending UCC Article 9 dispositions.
In a marketplace that operates digitally, commercial reasonableness must be evaluated through a modern lens.
For practitioners, the strategic use of engagement analytics transforms marketing from a procedural formality into measurable proof of market exposure.
When preserved and presented correctly, these metrics do more than demonstrate compliance — they help build a defensible record that can withstand judicial scrutiny in contested deficiency proceedings.
Leadership
Oren Klein
Oren Klein is a restructuring and insolvency professional specializing in assignments concerning bankruptcy trustees, federal and state receiverships, special fiscal agents, special masters and assignments for the benefit of creditors.
Mr. Klein has served as a Partner with AuctionAdvisors for the past 12 years. Prior to his position at AuctionAdvisors, Mr. Klein was a Partner at Integrated Property Group, LLC for over 4 years.
Mr. Klein currently serves as the Chairman of the Turnaround Management Association’s New Jersey Chapter with over 220 members in the insolvency and restructuring industry.
He also served as a member of the Chapter Resource and Response Committee for the Global Turnaround Management Association serving 52 Chapters with over 10,000 members worldwide.
Mr. Klein holds a bachelor’s degree from Rutgers University and is a graduate of The World Champion College of Auctioneering.
He is a real estate broker in 5 states and a licensed auctioneer.
Mr. Klein has also served as Special Master and Court-Appointed Receiver in several state court actions.
Contact:
Oren Klein — 973-753-1313 ext 703
oklein@auctionadvisors.com
Joshua Olshin
Joshua Olshin is a partner at AuctionAdvisors and brings extensive experience advising corporations, financial institutions, municipalities and individuals on the disposition of assets throughout the United States.
Before entering the auction business, Mr. Olshin worked as a corporate and transactional attorney in private practice for more than 8 years, beginning his career at Skadden Arps Slate Meagher & Flom and then at Friedman Kaplan Seiler & Adelman.
During his time as an attorney, he advised top Fortune 500 companies on the acquisition and disposition of corporate assets.
Mr. Olshin received:
• B.A. from Johns Hopkins University
• J.D. from Northwestern University Law School
• M.B.A from INSEAD (Fontainebleau, France)
He is a member of several trade organizations including:
• Turnaround Management Association (TMA)
• American Bankruptcy Institute (ABI)
• National Association of Home Builders (NAHB)
• Urban Land Institute (ULI)
• Mortgage Bankers Association (MBA)
• National Association of Auctioneers (NAA)
He is admitted to the New York Bar Association.
Contact:
Joshua Olshin — (212) 375-1222 ext 705
jolshin@auctionadvisors.com
Disclaimer:
This blog post is sponsored content provided by Auction Advisors, which may act as an auctioneer or service provider in connection with UCC Article 9 foreclosure sales. The information herein is for general informational purposes only and does not constitute legal, financial, or professional advice. UCC Article 9 laws and procedures vary by jurisdiction and are subject to change. Readers should consult qualified legal counsel regarding their specific circumstances. No attorney-client, fiduciary, or advisory relationship is created by this content. Outcomes of foreclosure sales vary, and no results are guaranteed.
