Thursday, December 08, 2011

A little less chilly

In a case that previously "sent a chill down the collective spines of the major auction houses," Christie's has defeated the fraud claims brought against it by Guido Orsi.  The reason for the chilled spines was that Christie's didn't sell the work to Orsi; he bought it from someone else, who had bought it at Christie's.  But the claim was allowed to proceed anyway.

And proceed it did, until a couple of weeks ago, when the Court granted summary judgment for lack of evidence of fraud:

"Orsi primarily relies upon GB's [Basquiat's father, Gerard Basquiat] testimony with regard to knowledge and intent to defraud. ...[But] GB could not identify or even describe the person with whom he spoke [at Christie's], except to state that he was fortyish and blond, 'maybe 5'8 or 5'9 maybe' (GB Dep at 126-127, 130). GB testified that he did not know the man's name, the man was just wearing a business suit with no Christie's emblem, GB did not know the man's title, and the man did not say to GB that he was from Christie's Contemporary Art Department (GB Dep. at 130-131). ...When [asked] if he ever told anyone at Christie's that he thought it was a fake, ... GB clearly asserted, 'Never' (id.). He attested that he did not tell the man that the Painting was not authentic (id). GB stated that he did not tell anyone at Christie's that he thought it was a counterfeit and did not ask the man or Christie's to withdraw the Painting from the Auction (id. at 132-133). When asked about whether he told other Christie's employees, ... with whom he had significant contact before in connection with appraising his son's estate and selling some of the paintings, some of whom worked in the Contemporary Art Department, GB again answered 'No' (id. at 134-135). It is undisputed that GB took no further action in connection with the Painting. This testimony is insufficient to raise a genuine issue as to Christie's intent to defraud and to its knowledge. ... Under the proof presented, the trier of fact would have to assume that the anonymous and unidentified person with whom GB spoke, over 20 years ago, worked for Christie's, had some authority, and conveyed what GB told him to a person with authority at Christie's, to show that Christie's had knowledge and intent. This proof, at most, creates only a shadowy semblance of an issue, insufficient on a summary judgment motion."

So Christie's wins this battle, but the spine-chilling principle of the earlier decisions -- that an auction house can be sued by someone they've never done business with -- remains in place.