Friday, November 12, 2010

Park West Gallery Update November 2010

We are all beginning to understand how convoluted and arcane our legal system can be. The Park West Gallery case suggests that statement might well be an understatement. With all the confusion it is imperative that all of us that are writing about the subject be precise in our language. So what do we actually know that is undisputed fact at this point. We know that Park West Gallery sued Fine Art Registry for defamation. We also know that the jury found that Art Registry was not guilty of defamation and awarded the company $500,000. The judge vacated this award permitting no damages to be awarded based on, as you will note below, what he perceived to be "persistent misconduct". I was not present for this trial nor am I lawyer; however, I am unable to find any rationale for a judge to reject the jury's conclusions as if they were not present to witness all that happened in the court.   I have verified the jury's conclusions which were recorded on the Verdict Form that Park West was kind enough to send me. You can verify this for yourself by reading the Verdict Form posted on Art Registry's website.

A version of what happened in court appears on the Michigan Lawyer's Weekly Blog:

"On Aug. 12, Hon. Lawrence P. Zatkoff of U.S. District Court for the Eastern District of Michigan vacated the jury’s verdict and ordered a new trial. He said that FAR founder Theresa Franks and counsel Donald L. Payton and Jonathan H. Schwartz “engaged in persistent misconduct in front of the jury throughout the trial, and it would be fair to characterize the misconduct as ‘contumacious conduct.’”

For one, Zatkoff wrote, “counsel violated the Court’s in limine ruling regarding other legal disputes involving Plaintiff.”….

“[T]he Court: (1) vacates the jury’s verdict with respect to the nine claims asserted by Plaintiff against the FAR Defendants, (2) vacates the jury’s verdict on the Lanham Act counter-claim filed by FAR against Plaintiff, and (3) orders a new trial on the nine claims asserted by Plaintiff against the FAR Defendants and the Lanham Act counter-claim filed by FAR against Plaintiff.”

UPDATE: Crain’s Detroit Business reported Sept. 16 that neither Park West nor FAR will appeal the judge’s ruling, and instead will await a new trial, as Zatkoff has ordered.

Park West attorney Rodger Young briefly appealed a portion of Zatkoff’s ruling that had preserved a small portion of the April jury verdict pertaining to Bruce Hochman, owner of California-based The Salvador Dali Art Gallery. But he said he expects to withdraw that appeal, as the dealer has settled with Hochman.

Meanwhile, Payton is still representing several art buyers in a separate lawsuit against Park West filed at Oakland County Circuit Court. It remains pending before Circuit Judge Nanci Grant.

What else do we know? We  know that other cases are in the works. Some of these are class action suits which are waiting to be certified by the courts. Apparently, these cases also challenge Park West Gallery's art selling practices.  The list of cases is listed on the Fine Art Registry website.


Alleman et al v. Park West Galleries, Inc. et al - filed July 22, 2009

Mullen v. Park West Galleries, Inc., et al - filed July 24, 2009

Hatter v. Park West Galleries, Inc. et al - filed July 29, 2009

Bohm v. Park West Gallery, Inc. et al - filed April 13, 2009

(Bohm Amended Complaint filed July 24, 2009)


Blackman v. Park West Galleries, Inc et al - filed September 2, 2008


Bouverat v. Park West Gallery, Inc. - filed June 20, 2008

Certainly Park West Gallery wants all this to go away without any further attention to the legal disputes that seem to be mounting. But let's give the judge  the judicial benefit of the doubt. Regardless of what Fine Art Registry and their lawyers did or did not do during the defamation trial, the testimony of the art experts, the increasing number of law suits being filed by unhappy customers, and the criticism of Park West Gallery's authentication and appraisal practices does not just magically disappear simply because this judge disagreed with his jury. This is a big problem for Park West that will be resolved in court.

It does appear that Park West has won round one by default and not by jury verdict. We will take a look at one of their appraisals in a later article to understand the basis of the criticism in this particular area. What are the reasonable expectations of  an art buyer? Are there any agreed upon standards that most appraisers and authenticators follow? Does it appear that there might be some conflict of interest? Future cases will be adjudicated on these points.

Park West deserves a fair hearing and an opportunity to defend their gallery practices. In my judgment the art world needs to lower the rhetoric and let the facts speak for themselves dispassionately. Considering the damage that has been done to reputations and to the  confidence the public may have had in the commercial side of the art world,  believe me regardless of who wins there should be no victory dance.

1 comment:

Unknown said...

I beleive you will find that Defendant Fine Art Registry has filed a motion to reinstate the jury verdict based on controlling case law which states, in essence, that the party demanding the new trial cannot "roll the dice" pending the jury verdict and then demand a new trial if they don't like the result, if the basis on which they are demanding the new trial was known at trial.

In this case, PWG has demanded a new trial based on what they saw at trial - so-called attorney mis-behavior.

This should all be a matter of public record available for comment and discussion . . . .