Tuesday, December 15, 2015

Second Circuit Affirms Haring Decision

Earlier this month, the Second Circuit affirmed a District Court decision dismissing authentication-related claims against the Haring Foundation.  You can read the decision here.   I think the most significant aspect the decision -- and potentially a hugely important tool for defendants in these sorts of cases -- is that it confirmed the lower court's take on the "special damages" requirement (discussed in point 6 of my post on the earlier decision):  that is, because the plaintiff could not name both (1) the specific individuals who decided not to buy the work and (2) the price they would have paid, they could not make out a claim for product disparagement.  As I said in the earlier post:

"That would, as I say, be a difference-maker ... but is it right?  I am minding my own business with what I think is a $50 million painting by Artist X hanging on my wall.  Out of nowhere, the Artist X Foundation (or some other well-respected authority on Artist X's work) announces to the world that my painting is not an authentic work by Artist X (and is therefore now worthless) ... and there's nothing I can do about it because I can't point to a specific sale that I lost?"

Apparently, yes.