Appealing decision in Thompson v. Warhol (2013)

In November 2011, Supreme Court Judge in New York, Carol R. Edmead decided Thompson v. Andy Warhol Foundation Board. The Complaint brought in the case alleged “breach of contract against the Board; negligent misrepresentation against the Board, the Foundation, and the Museum, and gross negligence against the Board, the Foundation, and the Museum.” Meaning, Plaintiff purchased a drawing believed to be a self-portrait by Andy Warhol. He submitted it to the Board of the Andy Warhol Foundation three times, in March 2008, January 2009, and November 2009 for authentication. It was alleged that each time that plaintiff submitted the Drawing, he included additional information he thought would bolster his claim that his purchase was made by Warhol. However, the Board repeatedly ruled that it was not authentic. Each time, the Board informed Plaintiff how it would behave if and when it formed its opinion, and Thompson agreed not to sue the Board for its opinion.

Clearly, Plaintiff was not satisfied with the results of the Board’s deliberations. Instead of sending white smoke into the air, the parties went to court, where the judge moved to dismiss the complaint.

On appeal just last month, Judges from the First Department Appellate Division, Friedman, Sweeny, Renwick, Freedman and Roman affirmed that “Plaintiff’s claims must be dismissed, as defendants’ only duty to plaintiff was that undertaken by the letter agreements.” They held that the relationship was not fiduciary and most importantly repeated that “the market place is the appropriate place to resolve authentication disputes” (citing Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 890 N.Y.S.2d 16 [2009]. Finally, the court declined to impose sanction on either side “contrary to the parties’ arguments” regarding their respective conduct.

If hard cases make for bad law, this was clearly an easy case (or there is another explanation to the seemingly good law making here).

Attorneys on the case: Michael D. Rips with Steptoe & Johnson LLP for Thompson and Luke Nikas with Boies Schiller & Flexner, LLP for the Board.

Sources: Thompson v Andy Warhol Found. for the Visual Arts, Inc., 33 Misc. 3d 1221(A) (N.Y. Sup. Ct. 2011), aff’d by Thompson v Andy Warhol Found. for the Visual Arts, Inc., 103 A.D.3d 528 (N.Y. App. Div. 1st Dep’t 2013)

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