It’s interesting to see the way that new legislation raising the bar on lawsuits against authenticators is being pitched. Daniel Grant’s Gallerist story opens with a recap of the Warhol Foundation’s controversial authentication activities without mentioning the substantial row surrounding the foundation’s actions. Nonetheless, there have been a number of cases from frustrated art owners whose works have been denied the validation of an authentication committee. None of these suits have succeeded but they do leave the foundations exposed to costs:
The legislation would require anyone bringing a lawsuit against an authenticator to present “clear and convincing” evidence that the art expert acted in bad faith when rendering an opinion. That is a higher standard of proof than “preponderance of evidence,” which is often used in civil courts, but not at the same level as “beyond a reasonable doubt,” as is required in many criminal cases. Mr. O’Donnell said that under the current law a claimant could bring as a witness another expert to make the case that an artwork identified by the defendant as not authentic is genuine, and it would be up to the courts to determine which expert is more believable. Under the bill proposed by Senator Little and Assemblywoman Rosenthal, on the other hand, the claimant would need to show that “my expert is clearly right and there is no realistic possibility that the other expert is anything but wrong.” Along with the requirement that an unsuccessful claimant pay the authenticator’s legal costs, the bill “tells people not to bring a case unless they’re absolutely sure they’re right.” […]
“The law favors authenticators who render an opinion in good faith,” said Judith Bresler, a New York lawyer who helped draft Senator Little’s and Assemblywoman Rosenthal’s legislation. “The problem is you may win in court but in the process spend thousands of hours and hundreds of thousands of dollars to defend your opinion rather than practice your profession. So many of these lawsuits are meritless, but they have had the result of making authenticators reluctant to offer their expertise, and who can blame them? The legislation reincentivizes art authenticators to practice their profession.”
