Warhol Collector Wins Right to Pursue Foundation Suit
Date: 31 May 2009 | | Views: 3058
Source: Bloomberg, by Linda Sandler
A New York judge ordered that a collector of Andy Warhol artworks be allowed to pursue claims of fraud and unjust enrichment against a foundation that authenticates the artist’s paintings and prints.
Joe Simon-Whelan, owner of a Warhol self-portrait, sued the Andy Warhol Foundation for the Visual Arts in federal court in New York in 2007, asking to represent other buyers of the pop artist’s works that were judged to be fakes. The judge in an opinion filed yesterday refused to dismiss the case, saying the plaintiff satisfied “the plausibility standard” in alleging illegal trade restraint and monopolization.
Simon-Whelan, a London-based filmmaker, bought the Warhol portrait for $195,000 in 1989, one of several made in 1965 under Warhol’s direction at his so-called art factory in New York and judged genuine by the foundation, according to court papers. When he resubmitted it before trying to sell it for an anticipated $2 million in 2001 and 2003, it was twice stamped “Denied,” or fake, the filing said.
“Mr. Simon-Whelan has battled this organization for a long time,” said his lawyer, Brian Kerr of New York-based Browne Woods George LLP, in an e-mail. He “is pleased that the court’s decision now gives him the opportunity to obtain monetary damages and an injunction for the benefit of himself and others because defendants unjustly benefited from their antitrust conspiracy and fraud.”
Warhol, who died in 1987, produced images of cult figures such as Marilyn Monroe that are owned by collectors from hedge- fund manager Steven Cohen to London jeweler Laurence Graff.
Granting Simon-Whelan’s request to question witnesses, Judge Laura Swain narrowed the grounds of his suit, saying he couldn’t make antitrust claims based on allegations that the foundation was inflating prices of Warhol pictures in its own inventory.
“We are pleased that Judge Swain’s opinion dismissed the guts of Mr. Simon’s antitrust claims,” said Gary Sesser of Carter Ledyard & Milburn LLP, a law firm for the New York foundation. “As to the remaining claims, we have a very strong case on the merits and look forward to litigating the issues.”