An increasing number of lawsuits filed against fine art authentication experts has caused fear within the art market and resulted in judicial and legislative intervention. Often the targets of lawsuits by disgruntled artists, investors and owners, many art authentication experts are increasingly unwilling to speak freely.  In an industry that relies much more on scholarly opinion than on science, such self-imposed censorship threatens to disrupt the natural functioning of the art market.

A bill recently passed by the New York State Senate—and currently under consideration in the New York State Assembly—seeks to limit the number of lawsuits filed against art authentication experts.  Senate Bill S1229A — which would amend New York’s Arts and Cultural Affairs Law—heightens the pleading requirements for parties pursuing claims against art authentication experts.  Specifically, S1229A states that in a civil suit against an art authentication expert related to the expert’s opinion concerning a work of fine art, the “claimant shall specify with particularity in the complaint facts sufficient to support each element of the claim or claims asserted.”  S1229A further allows a court to award a prevailing art authentication expert costs of suit, attorneys’, expert, and witness fees incurred in successfully defending such an action.

New York legislators hope the passage of S1229A will limit lawsuits such as the case filed in 2014 against the Keith Haring Foundation and its individual officers and directors, among others.  The Foundation—the mission of which is to “sustain, expand, and protect the legacy of [the late artist] Keith Haring, his art, and his ideals”—was sued by several art collectors purporting to own a total of 111 authentic Keith Haring works.  The lawsuit claimed that the Foundation’s refusal to authenticate the plaintiffs’ works—despite multiple other experts’ opinions that the works were likely genuine—and efforts to block the sale of the plaintiffs’ works constituted a violation of antitrust and defamation laws, among others.  A district court in the Southern District of New York dismissed the lawsuit earlier this year holding, among other things, that plaintiffs failed to allege a conspiracy between the Foundation and third parties sufficient to state a claim under the Sherman Act.  The court further held that plaintiffs failed to allege defamation because, based on the facts alleged, any defamatory statements were made against the works themselves, not the owners of the works.

While both courts and legislators aim to protect art authentication experts from frivolous lawsuits, the heightened pleading standards apply with equal force to experts seeking damages from detractors.  This month, the Second Circuit dismissed a lawsuit filed by controversial art authentication expert Peter Paul Biro against Condé Nast and others.  Biro claimed that a 2010 article in The New Yorker—which was subsequently republished by other defendants to the lawsuit—defamed him by questioning his use of fingerprint analysis in authenticating works of art.  The article raised questions about the trustworthiness of his methods and suggested that Biro profited from some of his questionable authentications.  While the Second Circuit agreed with the district court that anyone who reads the article “may walk away with a negative impression of Biro,” it nonetheless held that Biro, as a limited purpose public figure, failed to plead plausible grounds sufficient to infer actual malice as required by the Federal Rules of Civil Procedure.

While art authentication may rely on opinions and conjecture, any lawsuit filed against an art authentication expert requires a much higher degree of certainty in order to survive a motion to dismiss.