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Filmmaker's Antitrust Suit Against Andy Warhol Foundation to Go Forward
The American Lawyer
June 01, 2009
If you are lamenting not investing in Andy Warhol paintings back when they could be had for less than the price of a private supersonic jet (his 1963 painting "Green Car Crash" sold for $71.7 million at a 2007 auction), consider the case of filmmaker Joe Simon-Whelan. In 1989 Simon-Whelan purchased a relatively little-known Warhol self-portrait for $150,000. A few years ago, he decided to sell his painting, but there was a snag: An art authentication board established by the Andy Warhol Foundation for the Visual Arts twice declared the self-portrait a fake, even though the painting had previously been authenticated by the foundation itself. (Simon-Whelan then dubbed the untitled painting "Twice Denied.")
Simon-Whelan filed a class action complaint in Manhattan federal district court, claiming that the foundation and the Andy Warhol Art Authentication Board collaborated in a "20-year scheme" to control the market for Warhol paintings.
Last week, federal district court judge Laura Taylor Swain ruled that there is sufficient evidence to allow most of Simon-Whelan's antitrust claims to go forward. (Here's a story about the ruling from Courthouse News Service).
Warhol, who died in 1987, established the foundation in his will. According to Simon-Whelan's complaint, the foundation -- which received hundreds of millions of dollars of Warhol art from the estate -- became the exclusive sales agent for the paintings, determining who could buy the art and at what price. The Foundation established an authentication board in order to discredit the many Warhol forgeries that are floating around.
But Simon-Whelan claims the board is used to control the market and inflate prices for Warhol works. "The Authentication Board is utilized to remove competing Warhol artwork from the marketplace by falsely declaring it to be inauthentic, thereby raising the value of the Foundation's own holdings," the suit contends.
The case has caused quite a stir in the art world, and even prompted a 2007 Vanity Fair article about the authentication board. "To a wide range of disgruntled gallery owners, dealers, and collectors contacted by Vanity Fair, those opinions are suspect," Vanity Fair wrote. "Few such boards, they observe, are linked to a foundation that has had troves of the late artist's work to sell -- a potential conflict of interest. Critics say the board plays favorites: The same painting may be authenticated when submitted by one dealer, they suggest, but denied if submitted by a less established one."
The defendants, represented by Gary Sesser and Ronald Spencer of Carter Ledyard & Milburn in New York, disagree with this assessment. "Simon-Whelan has brought this class action antitrust suit in order to bludgeon a charitable organization into coercing a panel of independent art experts to change their opinion concerning the authenticity of his purported Warhol self-portrait," the lawyers wrote in their motion to dismiss.
Simon-Whelan is represented by Brian Kerr and Lee Weiss of Browne Woods George and by Seth Redniss of Redniss & Associates.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
