Andrew Hall, a hedge-fund manager and art collector, filed suit against Lorettann Gascard, a former art-history professor at Franklin Pierce University, and her son, Nikolas, alleging that the Gascards sold him twenty-four artworks by the famed artist Leon Golub that actually were forgeries. The Gascards are now firing back that Hall alone should be held responsible for his failure to conduct adequate pre-sale diligence; a common refrain among accused fraudsters looking to cast blame back on sophisticated art collectors, like Hall.

Hall alleges that he bought the twenty-four works over a two-year period from 2009-2011, first purchasing eight works from the Gascard’s collection through Christie’s and Sotheby’s in New York, and then, once he was introduced to the Gascards, purchasing sixteen more from them directly. Hall claims to have discovered the works were forgeries in 2015, when the Hall Art Foundation prepared to exhibit Hall’s collection of Golub’s works. In the course of planning the exhibition, the Golub Foundation allegedly concluded that the works obtained from the Gascards were “likely forgeries.” Then, when Hall sought Ms. Gascard’s assistance to prove the genuineness of the challenged works (which she claimed were gifts or purchases from Golub or were acquired upon the death of her husband’s sister) Ms. Gascard was unable to provide any evidence of authenticity. Indeed, according to Hall, she only produced two letters, a February 2002 letter, allegedly from Golub to Gascard, thanking her for sending him an article, and a March 2003 letter, allegedly from Nancy Sperio, Golub’s wife, to Gascard, thanking her for her gift of earphones. Neither letter mention the artworks.

Hall also claims that the works were examined by “other persons expert in Golub’s work” and all “expressed grave doubt that the works were genuine.” He sued the Gascards in New Hampshire District Court for fraud and breach of warranty, among other things, seeking the return of the $676,250.00 purchase price for all the works.
Just last week, Lorettann and Nikolas Gascard (proceeding pro se) filed a motion to dismiss Hall’s complaint. The Gascards’ motion highlights a familiar refrain in similar cases regarding the responsibility of the buyer to conduct adequate pre-sale diligence. The Gascards, among other things, argue that Hall is a sophisticated art collector with knowledge “concerning the various particularities of Golub’s work and market” and that he should have performed an inquiry with respect to the works before purchasing them from defendants. Indeed, Hall was able to obtain expert opinions concerning the alleged, including the Golub Foundation, as Hall alleges in his complaint; so, they argue, he could have and should have done so before agreeing to buy the works.

The Gascards rely heavily the Second Circuit’s 2014 decision in ACA Galleries, Inc. v. Kinney, where the court upheld a lower court’s opinion granting summary judgment to the defendants in a case regarding the sale of a forged Milton Avery painting. The Court held that the plaintiff’s reliance on the defendant’s representations was unreasonable where the plaintiff was a sophisticated art gallery, so should have been aware of the risk of forgeries and performed its own investigation before it made its purchase. The Gascards argue that, like the plaintiff in Kinny, Hall “failed to make use of the means of verification that were available to him” and “chose not to avail himself of any expert input at the time of sales.” Therefore, he cannot allege justifiable reliance on statements by the Gascards about the works.

The Gascards also rely on the decision in MAFC Art Fund, LLC v. Gagosian for the proposition that Hall’s failure to do any independent pre-sale due diligence, or ask for documentation from the Gascards to verify the authenticity of the works, precludes justifiable reliance on any of the alleged misrepresentations. And Hall’s “Monday-morning quarterback[ing]” by seeking documents from Ms. Gascard following the sale in 2015 only further highlights that Hall proceeded with the transactions without bothering to secure the available documentation.
The Gascards’ motion is an attempt to extend the holdings in Kinney and Gagosian to individual purchasers, like Hall, who are sophisticated art collectors in their own right. It will be interesting to see how these arguments are received by the New Hampshire District Court, as this is yet another warning of the potential consequences of not conducting adequate pre-sale due diligence.