Friday, June 05, 2009

Know when to fold 'em

There've been some developments in Gregory Callimanopulos's suit against Christie’s over the reopening of the bidding for a Sam Francis painting last month. I discussed the suit here.

On May 15, the court granted a TRO preventing Christie's from going ahead with the sale to the ultimate buyer (Eli Broad). Callimanopulos's lawyers had argued that "to resolve this dispute the Court may need not look further than the recordings of the auction .... It is clear that these recordings are critical to the determination of this matter -- indeed, they may be dispositive." According to papers filed by Broad, "the recordings of the auction were shown to Callimanopulos, his curator, his assistant, and his numerous lawyers on May 21." The next day Callimanopulos got new lawyers.

On June 2 the court denied Callimanopulos's motion for a preliminary injunction. It notes that it "has reviewed a video of the relevant portion of the Auction. In the video, a woman seated in the front row can be seen raising her paddle to chest-height as [auctioneer] Burge calls 'fair warning' and then raising it above her head as Burge is bringing down the hammer. Burge recognizes the woman's bid a few seconds after striking the hammer." It goes on to say that "under the U.C.C." -- which "the parties agree governs this action" -- "it is clear that while the fall of the hammer concludes a sale, where a bid is made while the hammer is falling, the auctioneer has the discretion to recognize that bid even after the hammer has fallen. ... Here, Burge exercised his discretion and re-opened the bidding, seconds after striking the hammer. The videotape ... confirm[s] that [the competing bidder] raised her paddle as Burge said 'fair warning' and then raised it even higher as he brought down the hammer."

The court then brought the hammer down on Callimanopulos, concluding that he "fails to raise sufficiently serious questions going to the merits to make them a fair ground for litigation, let alone a likelihood of success" (emphasis added).

Callimanopulos is appealing the decision -- his argument now seems to be that "the auctioneer must act in good faith in relying on spotters to reopen the bidding," but in this case he "could not possibly have exercised his discretion in good faith unless the spotters informed him that [the new bidder] made her bid before the hammer fell (otherwise, there would be no basis for the auctioneer to reopen the bid)" -- but it's hard to escape the conclusion that, as Christie's put it in their most recent filing, "undisputed video evidence in this case conclusively demonstrates that another bidder placed a bid for the Artwork prior to the fall of the hammer and therefore there is no question for litigation" (emphasis in the original this time).

Additional coverage from Philip Boroff in Bloomberg and from American Lawyer, which helpfully provides a link to a transcript of the preliminary injunction hearing as well.