In Warhol Art Case, BSF's Defense is a Good Offense
Firm Newsletter Spring 2011
NIcholas Gravante, Jr.
When The Andy Warhol Foundation and The Andy Warhol Art Authentication Board, Inc. retained BSF to defend against antitrust claims, the clients had lost a motion to dismiss the case. Because the case, if successful, threatened the potential for copycat lawsuits, the clients directed BSF to fully prepare the case for trial in order to deter future litigants. The strategy was prescient: just months after BSF took over the case, a second plaintiff, Susan Shaer, represented by the same law firm as Simon-Whelan, filed an identical case.
In 2001, and again in 2003, Simon-Whelan submitted to The Andy Warhol Art Authentication Board a work he purportedly owned and that he claimed was a self-portrait created by Warhol. Each time the Authentication Board concluded that the portrait was not the work of Warhol. Simon-Whelan, after having agreed not to sue if he was dissatisfied with the outcome, mounted a media campaign as he filed litigation in New York federal court alleging that the Board’s opinion was the result of a vast, long-running antitrust conspiracy it had entered into with the Warhol Foundation. The alleged object of the conspiracy was to deny authenticity to authentic Warhol works, thereby limiting the number of authentic Warhol’s on the market at any given time and artificially driving prices.
A good defense turned out to be a good offense. BSF focused not only on defending the antitrust claims but on counterclaims against Simon-Whelan which would have resulted in his liability for all the Warhol entities’ legal fees and costs. BSF also developed evidence illustrating that Simon-Whelan lacked credibility and was pursuing this case for improper motives. These offensive efforts culminated in a two-day deposition of the Plaintiff taken by BSF partner Nicholas Gravante, Jr. Gravante used the documentary evidence obtained in discovery to establish that Simon-Whelan had committed criminal acts around the world, and that for over 15 years he had made untrue statements to law enforcement officials, the press and business partners.
As a result of this extensive discovery, BSF negotiated a settlement that was a complete victory for the Warhol entities. Both Plaintiffs voluntarily dismissed, with prejudice, all claims against the Warhol entities for no consideration whatsoever. As a part settlement Plaintiffs also admitted to the Court that there was not, nor had there ever been, any evidence to support their claims.
Along with Gravante, partner Philip Iovieno led the BSF team litigating these cases. Associates Christopher Fenlon, Ryan McAllister, and Anne Nardacci were core members of the team. Partners David Barrett, Adam Shaw and Kelly Yuan also made substantial contributions throughout the litigations.
For media coverage of this case, please click here.
Related Practice: Antitrust