Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc.

Joe Simon-Whelan (plaintiff) owned a painting that he believed to be by Andy Warhol. In December 2001, he decided to sell it. At the time, the Andy Warhol Foundation for the Visual Arts, Inc. (the foundation) and the Andy Warhol Art Authentication Board, Inc. (the board) (collectively, the authenticators) (defendants) were central actors in the authentication of Warhols. Before selling, Simon-Whelan was advised by art-world experts to submit his painting to the board for authentication. The board rated paintings into three categories: by Warhol, not by Warhol, or no current opinion on authenticity. The foundation issued Warhol’s catalogue raisonné—or comprehensive catalogue—and owned many of Warhol’s works. In December 2001, Simon-Whelan submitted his painting to the board. The board denied the painting’s authenticity and invited Simon-Whelan to resubmit with additional documentation, which he did. In July 2003, the board rejected the painting a second time. At this point, Simon-Whelan became suspicious. He filed suit against the authenticators, alleging that the authentication system and the entities’ related behavior—working together to pressure owners into submitting artworks for authentication, authenticating or unauthenticating those works in a self-serving manner, and refusing to authenticate works that the foundation had not been able to purchase for itself—amounted to anticompetitive behavior under federal antitrust law. According to Simon-Whelan, the authenticators were engaged in a conspiracy to restrict trade in and monopolize the Warhol market, and their behavior both hindered his ability to sell his painting and artificially suppressed its value. The authenticators moved to dismiss, arguing that Simon-Whelan had failed to properly state an antitrust claim.