The New York State Senate has passed a bill relating to the liability of authenticators and appraisers. When I first saw the news it seemed like a minor development, but then I went and read the bill. It stripped out a material aspect of the bill first proposed last year that would have required plaintiffs seeking damages against authenticators to prove their case by clear and convincing evidence, a daunting standard. Heightened pleading requirements are still contained within the bill, but the attorneys’ fees provision has also been watered down, with such an award now discretionary rather than mandatory.
Topics: Legislation, Section 13.04, Section 15.12, Hyperallergic, authentication, clear and convincing, fee-shifting, Senate Bill S6794, Warhol Foundation, attorneys' fees, preponderance of the evidence, appraiser, New York Arts & Cultural Affairs Law, authenticator, New York Senate, S1229-A
At Friday's Art Law Day at the annual meeting of the Appraisers Association of America, Judith Bresler gave the keynote address on the topic of the complications created by prosective liability for authentication experts. As prominent cases ranging from the Knoedler forgeries to the decision by the Warhol Foundation and others to cease authenticating works have shown, the opinion of experts as to whether a work of art is indeed by a particular artist is a recurring and important issue. Not only do transactions worth tens of millions of dollars rest on that authentication, absent a robust exchange of opinions about authorship, frauds and forgeries are actually encouraged. As it stands, many qualified authenticators and experts have simply judged that giving an opinion is too great a risk to facing a defamation, fraud, or negligence claim, on which they will usually prevail but only after great expense. As Bresler said, “when authenticators are afraid to practice their profession, it has a far reaching effect.”