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In Colorful Antitrust Case, BSF Tapped to Represent Andy Warhol Foundation

Winter 2010

Nicholas Gravante, Jr.

In 2001, a film producer named Joe Simon-Whelan submitted to the Andy Warhol Art Authentication Board a work that he claimed was a self-portrait created by Warhol. The Authentication Board, established in 1995 by the Andy Warhol Foundation for the Visual Arts and comprised of Warhol scholars and experts, concluded that the portrait was not the work of Warhol.

This decision by the Authentication Board spurred a long legal battle, which BSF has now been called on to bring to an end.

After mounting a media campaign, including in Vanity Fair magazine and through an hour-long BBC documentary, Simon-Whelan filed a class action suit against the Foundation, the Authentication Board, and several other parties in the Southern District of New York, alleging antitrust violations, false advertising, unjust enrichment and fraud. He alleges that the defendants engaged in a twenty-year conspiracy to control the alleged market for the sale of Warhol work. After Judge Laura T. Swain largely denied the defendants' motion to dismiss, the defendants retained BSF to take over their representation.  Judge Swain's decision did dismiss Simon-Whelan's primary class claim, and shortly thereafter, Simon-Whelan voluntarily withdrew his remaining class claims, thus leaving only his individual claims in place. 

Most recently, in January 2010, the same law firm representing Simon-Whelan filed a case on behalf of a new plaintiff, alleging essentially identical factual and legal claims.

BSF's Nicholas Gravante, Jr. and Philip Iovieno are representing the defendants and are scheduled the take the case to trial in early 2011. BSF counsel Kelly Yuan and associates Anne Nardacci, Ryan McAllister, Scott Wilson, and James Richardson are also working on the matter.

Related Lawyers: Nicholas A. Gravante Jr., Philip J. Iovieno, Anne M. Nardacci, , Kelly Yuan

Related Practice: Antitrust