Monday, December 26, 2016
There's been some discussion of a recent Southern District decision dismissing a breach of fiduciary duty lawsuit against an art advisor having to do with another "disavowed" Cady Noland work. See, for example, The Art Market Monitor here ("Did Cady Noland Case Clarify Role of Art Advisors?"). I think the facts/posture of the case were too weird to draw any general conclusions from it. Basically, a collector purchased a Noland work from a gallery with a rescission clause providing for a refund if she disavowed the work. Which she did. The gallery returned part of the purchase price, but not all. The art advisor's role in the transaction was unclear: "despite the suggestion in plaintiff's briefing that [the collector] 'retained' and 'paid' [the advisor], ... the Amended Complaint nowhere alleges as much." And it also wasn't clear to the Judge what the advisor was supposed to have done wrong. The inclusion of the rescission clause "affirmatively benefited" the collector; the problem was just that the gallery failed to pay back the money as agreed. You get the sense from reading the decision that the Court felt like the collector's real beef was with the gallery -- who for some reason has not been served. All in all a pretty strange case and not one that I think will provide much guidance going forward.