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The Andy Warhol Foundation has reached a settlement with two disgruntled individuals who got appraisals of disputed Warhol artworks from the Foundation. As we previously reported, the individuals had accused the Foundation of conspiring with the board established to authenticate Warhol’s work in order to rig the market for Warhol paintings. Their cases had survived motions to dismiss, but both individuals had recently indicated they wanted to drop their claims, in part because of the financial burden of litigation. But the Foundation, represented by Boies, Schiller & Flexner, stated last month that it didn’t want to abandon its counterclaims against plaintiffs Joe Simon-Whelan and Susan Shaer, whom it accused of violating the contract they signed with the authentication board when they submitted their artwork for evaluation, and its motion for Rule 11 sanctions against Simon-Whelan’s lawyers. At a hearing on Wednesday, the parties finally reached an agreement, thanks to a little old fashion head knocking by a very hands-on Manhattan federal magistrate judge Andrew Peck. (You can read a transcript of the lively hearing here.) When the parties arrived at the hearing, settlement talks had broken down according to Nicholas Gravante Jr. of Boies, Schiller & Flexner, the lead lawyer for the Foundation. During the hearing, Peck, as he put it, “tweaked” some language in a proposed settlement that Shaer had previously rejected, and cajoled the parties to end their spat. (Peck was handling aspects of the case on behalf of Manhattan federal district court judge Laura Taylor Swain.) Under the agreement, the individuals will drop their claims against the Foundation, and the Foundation agrees to drop its counterclaims and motion for sanctions. In addition, the plaintiffs admitted that they found no evidence of fraud, collusion, manipulation or monopolization of the market. The plaintiffs also agreed not to seek or accept profit relating to any of their claims. (According to Gravante, plaintiff Simon-Whelan had sought book and movie deals about this litigation.) The result was an agreement that seemed acceptable to all. But the magistrate, who was clearly eager to get this case off Judge Swain’s docket, ran into a problem. The Foundation’s insurer, Philadelphia Insurance Indemnity Company, needed to sign off on the settlement, and no one was present from the insurance company who could bind the company. With the finish line within sight, that did not please Peck. “So who is making that decision for the insurance company, and why the hell aren’t they here?” said Peck. “Did you write to the Court saying, gee, Judge, I’m sorry to waste your time, but we’re too busy to send one or two people here? … All right. You know what? I’m, frankly, fed up with all of you. … what should I do? Other than say, a plague on all your houses.” The insurer’s lawyer Richard Reiter of Wilson Elser Moskowitz Edelman & Dicker told Peck that he wasn’t aware that a decision maker had to be present at the hearing. Near the end of the hearing, Peck stated: “I am reserving on whether sanctions should be imposed against the insurance company. And if the insurance company interferes with the board’s decision to approve the settlement, just know that when we have the next conference when the board shows up, the president of the insurance company or whoever is the highest decisionmaker needed to make a decision to settle the case, will appear, or I’ll send a marshal out to get them. And then they can bring their toothbrush and spend some nights in jail awaiting the conference.” Wilson Moskowitz’s Reiter declined to comment to the Litigation Daily. “We thought it was important to get recognition from both the plaintiffs and the court that there was no evidence to support their position,” Gravante told the Litigation Daily about the settlement. “We don’t want copycat cases.” He added that the Foundation’s board is expected to approve the settlement soon. Seth Redniss, who represented the plaintiffs at the hearing, did not respond to our messages.

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