ARTINFO learned of the decision over the weekend and obtained a statement from Simon, in which he cites a lack of "financial resources" to continue the case, as well as the Warhol Foundation's threat of punitive countersuits. (For the full text of Simon's statement, go to Jason Edward Kaufman's IN VIEW blog.) Redniss declined to comment when contacted by telephone, and lawyers for the Warhol Foundation could be immediately reached.
"The case is done," says Simon. "I can't do it anymore." The reason is that Redniss, who has been working for years without pay in exchange for a percentage of a prospective settlement, is unable to respond to the numerous motions filed by lawyers for the Warhol Foundation. Simon says he does not have funds to hire additional counsel and is unable to enlist other firms willing to work on contingency.
Simon and others had hoped that the lawsuit would uncover the committee’s secretive deliberations and open the door to claims that could result in reassessment of numerous rejected works, potentially resulting in many millions of dollars worth of art being reinstated in the Warhol canon. The stakes are extremely high. The auction record for a Warhol is the $71.7 million paid for his 1963 "Green Car Crash" silkscreen canvas at Christie's in May 2007.
Simon's complaint further alleged that the Warhol Foundation and its authentication board engaged in an illegal conspiracy to control the Warhol market by limiting the number of approved Warhols, and thereby increasing the rarity and value of the hundreds of works owned and sold by the foundation. They sought damages and an injunction against the Warhol Foundation, the authentication board, the Warhol estate, and executor Vincent Fremont — the sales representative for the foundation’s paintings — alleging antitrust violations, collusion, and fraud.
That broad allegation would have been difficult to prove, but Simon has presented compelling evidence to support the more limited claim that his Warhol should be deemed authentic. Last year Redniss revealed that Warhol himself deemed the self-portrait an autograph work. An identical red silkscreen self-portrait from the same series was signed by Warhol in 1969 and dedicated to his Swiss dealer Bruno Bischofberger, who owned it at the time. The painting not only was included in the 1970 catalogue raisonné of Warhol’s paintings and works on paper from 1960 to 1967, compiled by art historian Rainer Crone in collaboration with the artist — it was reproduced in color on the dust jacket.
Nevertheless, the authentication board twice rejected that painting, in 2003 and 2005. Simon's work from the same series was rejected in 2003 and again in 2004 when he re-submitted it with additional supporting material. The series — believed to total 12 canvases — was produced by an associate of Warhol's who was given acetates of the image by the artist and authorized to manufacture paintings in exchange for the loan of video equipment. The authentication board claims that although the Bischofberger painting was signed, dated, and dedicated by Warhol, the work and others in the series are not genuine Warhols because they were produced without the artist's direct supervision and by commercial printers with whom he never worked.
Members of Warhol's circle and experts in the artist note that he adopted industrial production techniques that challenged traditional concepts of authorship. They maintain that he considered such work authentic, and that the authentication board is wrong to reject them. Redniss believes that the evidence "definitively establishes that Warhol knew about Joe Simon's painting and the series it was from and that he considered it an authentic work." But it now appears that the case will close without the court deciding the merits of the art-historical evidence.
The abandonment of the case will disappoint other owners who believe their alleged Warhol works were unfairly rejected by the board. One of them is London dealer Anthony d'Offay, who owns the signed and dedicated self-portrait from the series. He offered the work along with more than 230 other Warhols and hundreds of other contemporary works in a 2008 gift and sale to the British nation. The self-portrait was withdrawn owing to the authentication board’s rejection, though the Tate, which jointly manages the d’Offay collection with the National Galleries of Scotland, stated, "We ourselves have no reason to doubt the authenticity of this painting."
The Warhol Foundation will likely argue that it won on the merits, but the case is an example of how money, power, and legal expertise can often dictate the course of lawsuits in the U.S. justice system. The Warhol Foundation, which reported assets of $309 million in 2008 tax filings, hired the preeminent antitrust lawyer in the country, David Boies of Boies Schiller & Flexner, who teamed up with other firms to outman and outmaneuver the sole practitioner Redniss and his co-counsel, the small New York and Los Angeles litigation firm Browne Woods George, LLP.
Boies, who is described by Fortune magazine as "corporate America's No. 1 hired gun," represented the FDIC in recovering losses during the savings and loan scandal, won a $4 billion antitrust settlement from Visa and Mastercard for American Express, and a $512 million class-action settlement against Christie's and Sotheby's for price fixing. His other clients have included Al Gore after the 2000 election, the U.S. in its antitrust claims against Microsoft, and also IBM, Napster, and filmmaker Michael Moore. His team buried the Warhol plaintiffs in a blizzard of motions to which they were unable to respond within court deadlines. Simon says the tactic was "like waterboarding." Redniss kept pace with the case until August when he and Simon dismissed Browne Woods George for failing to perform certain duties, says Simon. On September 16, Redniss asked the court for 30 days to find another co-counsel. Unable to enlist a replacement, he last week filed a motion to withdraw counsel that the judge is expected to grant at the November hearing.
Had Simon limited his complaint to arguing his painting's authenticity, the case stood a better chance of moving forward. The court would have heard testimony from Warhol's associates and other experts, and the authentication board might have been compelled to reverse or modify its determination, as it did recently concerning Warhol-type Brillo boxes made in Sweden that the committee labeled authentic until evidence revealed that they were manufactured posthumously. Instead, Simon and Redniss accused the defendants of antitrust violations and fraud that could have resulted in penalties and a larger payout. Threatened with a potentially catastrophic liability, the Warhol Foundation deployed its financial might to quash the claim, hiring batteries of skilled lawyers who successfully prevented the authenticity claim from being tried.
Warhol Foundation officials had argued that the lawsuit was frivolous and would detract from its ability to fulfill its charitable function. (The foundation distributed more than $16 million in cash to arts institutions and individuals in 2008, making it one of the biggest funders in the art world.) It is not known how many millions of dollars were spent combating Simon's claim. But foundation lawyers in 2007 filed a counterclaim against Simon and Redniss seeking repayment of fees and have moved for sanction under a rule of civil procedure that provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support. "They're threatening our legal team," says Simon. "They threatened to take my lawyer's apartment away." He added, "I'm broke — completely broke."
During the September hearing, judge Andrew J. Peck noted that Redniss is impecunious and that if foundation lawyers sought sanctions it would only be "to get the psychic satisfaction of a piece of paper from the Court that says 'judgment entered for defendants of $1 million in attorney's fees' that you or the Warhol estate can frame and put up on the wall like a trophy." That, he said "seems silly." What is more likely is that the Warhol Foundation will propose a settlement withdrawing the countersuit in exchange for Simon’s absolving the Warhol Foundation and its authentication board of any liability or wrongdoing, taking down his Web site (myandywarhol.com), and agreeing not to speak about the matter with the press. Even if Simon rejects the offer, the Warhol Foundation will have prevailed, although the place of the self-portrait series will remain in art-historical limbo.