In our Summer 2009 issue, we reported on an antitrust case brought against the Andy Warhol Foundation, the Andy Warhol Authentication Board, and the artist's estate and its executors. The suit was brought by collector Joe Simon-Whelan, who owns a work that the Authentication Board twice declared to be inauthentic. Simon-Whelan alleged that the Foundation and the Authentication Board restrained trade by conspiring to reduce artificially the number of authenticatedWarhols on themarket, and engaged in anticompetitive conduct in order to monopolize the market for the re-sale of works by Warhol. In May, 2009, a federal district court permitted the case to go forward.
In late October, Simon-Whelan announced that he was walking away from the case. He said he still believed that the work he owns is authentic, and during the course of discovery he presented supportive testimony from respected Warhol experts. He said, though, that he simply could not afford to continue the litigation against the vigorous defense of the Warhol entities.
The Warhol Foundation, however, declared that it would continue to pursue its counterclaims. At a hearing on November 10, the parties reached a tentative settlement whereby each side would drop its claims, Simon-Whelan would state that he had found no evidence of any wrongdoing on the part of the Foundation, and he would agree not to make any profit from his claims (such as from book or movie deals).
Simon-Whelan's decision to drop the case underscores the truism that litigation is expensive. And, because you can't predict what your adversary will do, you can't predict or control what the cost will be.
The decision to drop the suit also underscores how difficult it is to obtain any meaningful legal remedy against authentication committees and authors of catalogues raisonné. In our Spring 2010 edition, we discussed the case brought by Joel Thome against the Calder Foundation, established not only that authors of catalogues raisonné have no legal obligation to render any opinion on a work of art, but also that a court will not itself engage in the authentication process. That case left open the possibility that a successful cause of action could be raised against an authentication board if the plaintiff could show that the board was engaging in unlawful activity.
That, of course, is exactly what Simon-Whelan was trying to do. We will never know whether he was right or wrong, because the cost of proving his allegations came to be too high.
We will also never know what would have happened had Simon-Whelan won the lawsuit. Even if he had succeeded in proving that the actions of the Foundation and the Board were unlawful and that the denial of the authenticity of his picture was a part of that unlawful activity, it is not at all certain that the market would have accepted the picture as authentic.