Dealer Larry Gagosian is one of four people subpoenaed to testify in a New York federal lawsuit between London-based film-maker Joe Simon-Whelan and the Andy Warhol Foundation, including its subsidiary Art Authentication Board. Simon-Whelan, who owns a 1964 silk-screened self-portrait of Warhol twice denied authentication by the board, filed suit in July 2007 on behalf of himself and a “putative class of art buyers” alleging the foundation has committed a “20-year scheme of fraud, collusion, and manipulation by, between, and among defendants to control the market in works of art by the late Andy Warhol”.
The other three individuals subpoenaed are Martha Baer of Christie’s, Barrett White of Haunch of Venison and Matt Wrbican, archivist for The Andy Warhol Museum in Pennsylvania. At a hearing before Southern District Magistrate Judge Andrew Peck, on 25 June, it was disclosed that the four witnesses had, at the time of going to press, thus far not responded to subpoenas issued in May. A deadline for their testimony was set for 9 July. None of the four people in question could be reached for comment.
Simon-Whelan, who is seeking more than $20m in damages, has charged the foundation with violating the federal Sherman Antitrust Act and New York’s Donnelly Act “by engaging in a conspiracy to restrain and monopolise trade in the market for Warhol works”. The lawsuit also aims to quash the Authentication Board’s contractual agreement, which stipulates those submitting work give up their right to sue the board.
While attempts by the defence to have the case dismissed so far have been unsuccessful, in May 2009 Southern District Federal Judge Laura Taylor Swain did reject one portion that argued that the plaintiff suffered from price inflation. The charges permitted include the “antitrust monopolisation and market restraint allegations” as well as those lodged against the Authentication Board’s contract for submitting works.
According to a 3 December 2009 statement from the foundation, both the board and foundation are “pursuing counterclaims against Simon-Whelan for all costs and expenses incurred in defence of this unproductive litigation”. The counterclaim was filed because of Simon-Whelan’s breach of the board’s submission agreement.
The foundation’s lawyer, Nicholas Gravante, said he was confident the court would find in his clients’ favour. He also entered a number of documents into court which, among other things, question Simon-Whelan’s “credibility”. But Simon-Whelan told us that this was an attempt to smear him: “Instead of a suit about the intentions of an artist they are resorting to dirty tricks.” The next hearing is scheduled for 5 August.
Originally appeared in The Art Newspaper as 'Subpoenas for Warhol trial'